Mr D Marshall v British Transport Police and College of Policing Ltd: 4102749/2024

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4102749/2024

Venue Glasgow

Hearing 5, 7, 10, 11, 12, 13, 14, 17, 18, 19, 20 and 24 March 2025

Between

Mr D MarshallClaimant

British Transport Police and College of Policing LtdRespondent

Before

Employment Judge Campbell

Mr C Milsom (instructed by Counsel) for claimant

Mr N Caiden (instructed by Counsel) for respondent

Ms R M White (instructed by Counsel) for respondent

Date 4 June 2025

JUDGMENT

[1]The complaint of indirect discrimination under section 19 of the Equality Act 2010 is dismissed upon its withdrawal.

[2]Each of the claimant’s complaints of:a. Direct discrimination under section 13;

b. Harassment under section 26; and

c. Victimisation under section 27 of the above Act, together with

d. Detriment on the grounds of making protected disclosures under section 47B(1) of the Employment Rights Act 1996 is unsuccessful.

[3]The claim is therefore dismissed.

REASONS

[1]This claim was heard over a number of days in March 2025. The hearing was conducted by video given the large number of participants who were based in England.

[2]The claimant was a police officer who was employed by the first respondent and seconded for a period to the second. His legal complaints arose out of the termination of the secondment and how he was managed upon his return up until the point when he resigned.

[3]It had been agreed beforehand by way of case management that the hearing would deal only with liability and that witness evidence in chief would be given by way of prepared written statements. The parties co-operated to produce a joint core bundle and to that were added two supplementary bundles. Numbers in square brackets below correspond to those page numbers in the core bundle.

[4]Evidence was heard from the claimant and, on his behalf,(i) Mr Keith Potter, Editor of Policing Insight magazine and

(ii) Mr Martin Gallagher, a former police officer and current writer of publications in the field of policing and criminal justice. The first respondent led (i) Mr Michael Furness, Chief of Staff to the Chief Constable, (ii) Ms Rachel Etebar, Director of People and Culture,

(iii) Mr Allan Gregory, former Assistant Chief Constable,

(iv) Mr Nick Hawkins, Member of the British Transport Police Authority (‘BTPA’), and

(v) Mr Hugh Ind, Chief Executive of BTPA. The second respondent called as witnesses (i) Ms Nerys Thomas, Head of Research, Analysis and Knowledge Sharing, (ii) Ms Rachel Tuffin, Director for What Works, Culture & Inclusion and Professional Communities, (iii) Ms Nicole Higgins, Head of Engagement and Implementation and (iv) Ms Maggie Blyth, Interim Chief Constable of Gloucestershire Police.

[5]Following conclusion of evidence the parties provided written notes of their submissions which they supplemented orally. Although not reproduced or referred to fully in detail they were considered thoroughly as part of the tribunal’s deliberations.

[6]The parties’ representatives are thanked for their assistance in navigating the issues in the claim, legal and logistical, and ensuring that the hearing was concluded within its allocated hearing time.

[7]The tribunal deliberated following conclusion of the hearing and agreed unanimously on the contents of this judgment. Legal issues

[8]The parties agreed a list of issues which was revised as the hearing progressed. Given its length a copy is appended to this judgment rather than being repeated herein.

Findings of fact

[9]The tribunal made the following findings based on the evidence provided and relevant to the legal issues it had to decide. Findings not either agreed or uncontested were made on the balance of probability. Career background

Findings of fact

[1]The claimant had a career across various police forces which began in 1992. He joined the first respondent in February 2000 and reached the rank of Superintendent. He left its service on 31 January 2024 when his resignation from his position with the first respondent, given on 24 November 2023, took effect.

[2]The first respondent is a UK-wide police force responsible for maintaining order on railways and some related networks. In a number of ways it is different from other police forces throughout the UK. Those are commonly referred to as ‘Home Forces’. Some different pieces of legislation created pursuant to the Railways Acts apply to the first respondent and not other forces. Similarly, other legislation applies to Home Forces but not the first respondent.

[3]Alongside his role with the first respondent the claimant pursued an academic career. This began by way of university study into criminology in 2007 which culminated in a degree and later a master’s qualification by 2013. Following that he began writing articles for professional publications and delivering guest lectures in universities. This led to a part-time position lecturing with the University of Central Lancashire in 2021 which the claimant continued to hold following the end of his employment with the first respondent. Throughout that time he continued to write occasionally for professional journals. The first respondent knew about, and supported, the claimant’s academic career. Latterly he compressed his working hours into four days per week in order to devote a day to his academic activities.

[4]The claimant was based in Scotland. He reported to various Assistant Chief Constables (‘ACCs’) over time and latterly to ACC Alistair Sutherland. Above ACC level is the Chief Constable (‘CC’) of the first respondent. Since March 2021 that office has been held by CC Lucy D’Orsi. Secondment to the second respondent

[5]In early 2022 the claimant applied for a three-year secondment with the second respondent in the role of Chief Superintendent, National Performance Improvement Lead.

[6]The second respondent is an independent professional body with a number of remits and responsibilities in relation to the various police forces of England and Wales. Those include gathering and sharing knowledge, setting standards of conduct and service, providing training and development support, and assessing candidates for promotion to senior roles.

[7]The claimant was selected for the secondment and began the role on 19 September 2022. The secondment was governed by a three-way agreement between the claimant and each respondent dated 16 August 2022 [190-199] which was signed by or on behalf of each party.

[8]The seconded role was at Chief Superintendent level, a rank above the claimant’s own at the time. He received a corresponding increase in pay. The role involved working with the senior officers of police forces which had been identified as underperforming. He would deal directly with senior officers of a number of police forces in England and Wales. He reported to Nerys Thomas, then Head of Research, Analysis and Knowledge Sharing, who in turn reported to Rachel Tuffin, Director for What Works, Culture & Inclusion in Professional Communities. He remained in Glasgow and performed the role remotely, travelling to appointments in person as required. He kept in touch with ACC Sutherland at the first respondent.

[9]It was a condition of the secondment that the claimant relinquished his role with the first respondent. This was customary for a secondment of that length. When the secondment ended he had a right to return to the first respondent at Superintendent level, subject to which vacancies existed at the time. If there were no suitable roles he could be placed in a redeployment process which would either result in him being found a role within a set period, or potentially leave the force. The claimant told colleagues shortly before beginning the secondment that he did not expect to return to the first respondent. He expected it would be a stepping stone to a further senior role within a UK force, or retirement. The Executive Leadership Programme (‘ELP’) and the claimant’s application

[10]The second respondent operates a programme designed to identify and assess candidates for senior roles, typically at the rank of ACC or above. Currently it is named ‘Police Leadership Programme: Stage 5’, or the ‘Executive Leadership Programme’ (‘ELP’). Until the beginning of 2023 the abbreviation ‘PELP’ had been used, the initial P denoting the word ‘Police’, but the change was made to avoid confusion with another unrelated meaning of that acronym. The second respondent made efforts to communicate the change to ELP but the various previous titles continued to be used innocently by some, including the claimant.

[11]Over time various changes have been made to the ELP. It was more extensively overhauled around March 2023. The second respondent did so in response to a report published in September 2019 by His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services (HMICFRS) which examined the programme and canvassed views on it from various quarters. This was because concerns had been raised about a decline in the number of applicants for senior roles and the reducing duration of time spent in those roles, as well as the wellbeing of senior officers. The playing field was said not to be sufficiently level when it came to opportunities for promotion candidates, for various reasons. One particular view expressed was that some officers found it difficult to commit to a residential learning requirement of the course and so would more likely be put off applying. It was recognised that women officers were one group who could have this difficulty.

[12]The second respondent devoted substantial time and resources to revising the course. It consulted on making changes. It found the process of gaining support among heads of forces to be challenging as a significant proportion of senior officers had experience and familiarity with the previous version, and did not see a need to change it. A proposed shift away from an assessment centre focussed on approving candidates for promotion towards a development centre with a wider focus was not universally approved among senior officers. Some viewed the changes as an easing or slipping of standards regarding advancement.

[13]The previous version of the course was referred to as the ‘Senior Command Course’ or SNPAC assessment centre. Candidates applied directly, would have their application endorsed by their Chief Constable and had to be ready for promotion to a senior role (normally ACC or above) within the next 24 months. Candidates had to complete a three-month residential programme and then pass an assessment held over a weekend. On being accepted onto the course they tended to be expected to pass at the end of it. They were able to apply for temporary ACC roles whilst the course was underway.

[14]The revised course removed the full three-month residential requirement and replaced it with a combination of three remote modular elements to be completed over a 12-month period, with a smaller number of residential days. The process for a candidate to be accepted onto the course was revised and candidates had to submit a more extensive portfolio. Each module was assessed and candidates would have to pass it in order to continue to the next. It was anticipated that not all entrants would pass all elements and complete the course. There was a wider purpose to the course in that it was used to develop the skills of officers seeking advancement as well as assess their immediate suitability for senior roles. Again, candidates could apply for temporary promoted roles before completing the course. The shift towards developmental learning and the modular approach were seen as a way of modernising the learning and assessment process and levelling the playing field for those who had a challenge attending the residential element.

[15]Aspects of the revised programme were contained in a briefing [1653-1668] delivered by Jo Noakes, the second respondent’s Director of Leadership and Workforce Development. She was the effective lead for the new version of the ELP.

[16]In early 2023 the claimant wished to apply for entry to the ELP and gained the support of the first respondent to do so. It put forward two other candidates at the same time. As the first respondent does not fully subscribe to the second respondent in the way that Home Forces do, it had to pay for each candidate to be submitted.

[17]The claimant prepared an application according to the second respondent’s requirements, including assembling a portfolio of relevant experience and achievements [215-253]. It was dated 24 March 2023. The deadline for applicants was 27 March 2023. This was to be the first intake under the terms of the revised programme. Ms Rachel Etebar, the first respondent’s Director of People and Culture, prepared a briefing about the changes to the programme and the reasons behind them, and circulated it internally including to the claimant [269-270].

[18]Applicants were asked to provide details of verifiers – independent individuals – who could vouch their experiences and achievements listed in their portfolios. The claimant and his fellow applicants had their applications assessed by a panel comprising CC D’Orsi, Ms Etebar as a representative of the first respondent’s Executive Team, and an external representative of the second respondent. The day before the panel were to meet the Chief Constable asked Ms Etebar to contact each applicant’s verifiers to obtain confirmation of the information provided by the relevant candidate. Ms Etebar chose a sample of each person’s verifiers owing to the limited time she had. She contacted three of the claimant’s verifiers. One was content with the information the claimant had provided and confirmed it was accurate, another had no recollection of the circumstances described by the claimant and the third, an ACC O’Callaghan, said that the claimant’s examples were ‘factual in terms of role undertaken but there is poetic licence at play as well.’ He gave four instances of what he saw to be inaccuracy or exaggeration in the claimant’s descriptions of work he had undertaken or responsibilities he had held.

[19]The claimant was not selected to join the ELP programme. Of the three applicants one was selected, namely Allan Gregory. On 22 May 2023 Ms Etebar emailed the claimant to say that his application for entry to the ELP had not been successful, and to propose a means of CC D’Orsi and herself to provide feedback. The claimant responded but a convenient time could not be identified, and no discussion ultimately took place.

[20]Ms Etebar was asked by the other two panel members to refer the responses of the claimant’s verifiers to the first respondent’s Professional Standards Department (‘PSD’). She did so by completing a proforma ‘Notification of Misconduct Allegation’ form which was sent on 13 June 2023 [319-321]. A Ms Saund within the PSD team emailed her back on 12 July 2023, by way of an attached document [339-340]. She asked that the assessment not be disclosed further at that time. The email was addressed to Ms Etebar, and copied to ACC O’Callaghan, Ms Saund’s team email address and her own manager.

[21]Ms Saund began the assessment document with an apology for the time taken to provide it, which was due to volume of demand to the PSD unit. She explained that she had conducted a severity assessment of the referral and outlined the possible routes which could be taken, from no action at all to an investigation into potential gross misconduct. She assessed the claimant’s conduct, if proved, to amount to ‘Practice Requiring Improvement’ and recommended that the Reflective Practice (‘RP’) Review Process be followed. She said there was an opportunity for the claimant to learn from his mistakes and that the threshold for a full conduct investigation had not been met.

[22]The factors Ms Saund explicitly considered in her assessment were, in summary:a. The claimant, given his rank, should have known the importance of candour in such a significant process as the ELP;

b. The cost to the first respondent had the claimant been accepted for the ELP would have been approximately £25,000, which was significant in the context of a lack of transparency, and would impact on the claimant’s reputation had he gained entry and the issues regarding his portfolio later become known;

c. It was taken to be a mitigating factor that people generally would tend to embellish their achievements when applying for a new role, but in the police force there was no acceptable tolerance for doing so;

d. In the context of the cost of supporting a candidate through the ELP and the advantage to be gained from its successful completion in terms of ability to seek senior roles, it could be the case that he omitted to inform his verifiers of their inclusion in his application in the hope that they would not be consulted.

[23]It was proposed by Ms Saund in her email that ACC O’Callaghan oversee the claimant’s reflective practice. He was copied in the email. Ms Saund indicated that her team would send a formal notification to the claimant and ACC O’Callaghan to initiate that. If Ms Etebar felt it was better to notify the claimant beforehand she was to let Ms Saund know.

[24]Ms Etebar took from this communication that Ms Saund’s team and ACC O’Callaghan together would take the process forward. The tribunal accepted that Ms Etebar did not disclose the matter to anyone else at that time. She had no further involvement in the process and heard nothing more until August 2023 as detailed below. Magazine interview and articles

[25]The second respondent was approached by a professional publication, Policing Oracle, to provide an interview with the claimant about his seconded role. It was agreed with the second respondent’s Head of External Communications that he would do so and the piece was published on 24 April 2023. The claimant had assumed that Ms Thomas as his line manager would have been made aware of the interview, although did not inform her himself. She had not been told about it by the communications team either. Although generally unconcerned with the piece, she noted that the claimant had described the forces he would be supporting as subject to ‘special measures’, when the formal term used was ‘engaged’. She identified that the term chosen by the claimant could be perceived adversely by some readers including HMICFRS who took care to use the correct term to avoid overly negative connotations. The two discussed it at the claimant’s first review meeting on 31 May 2023. Ms Thomas asked the claimant to notify her in future if he was considering being involved in any similar pieces. This was so they could be checked for accuracy and any likely reader perceptions about the college considered.

[26]There was not complete agreement in evidence between both individuals regarding what the claimant was asked to do in that exchange. Ms Thomas said that she asked the claimant to let her know about any items which would be published by him or involving him, whereas the claimant understood she had asked to be made aware only of media content which included him in the capacity of his seconded role. As such he did not take her request to include articles he wrote in his academic capacity. Ms Thomas did not make such a distinction as she was unaware of the claimant having written, or intending to write, articles in his academic capacity. The claimant had completed a declaration form listing his external activities, and had stated that in his academic capacity he would be teaching and providing student support, but nothing in relation to article writing. He did not raise with Ms Thomas that he wrote articles and intended to continue doing so. Indeed, as described below, an article he had written was published two days later. The tribunal found it most likely that each individual’s recollection of what was said was essentially correct, but that Ms Thomas understood that the claimant’s undertaking covered more than he thought it did. Nevertheless, Ms Thomas had conveyed to the claimant the importance of ensuring accuracy in media content associated with the college and that it was important to consider how the college would be perceived by an external audience.

[27]A series of articles written by the claimant appeared in Policing Insight, an online magazine which is available by free subscription. The first was published on 2 June 2023, two days after the claimant’s meeting with Ms Thomas. The second, third and fourth were published on 19 June, 4 July and 25 July 2023 respectively. Each article had at its head a photograph of the claimant and described him as ‘Policing Lecturer, University of Central Lancashire’ and ‘a serving officer with more than 30 years’ experience’ or ‘a long-serving officer’, who was also a ‘part-time policing lecturer and PhD researcher’.

[28]The claimant did not tell Ms Thomas, or anyone within the second respondent, that he had written the articles or that they were going to be published. He considered that there was no need as he was writing them in his academic capacity rather than as an employee of the first respondent seconded to the second. No witness of either respondent read any of the first three articles which were on the topics of the police reconnecting with communities, police responding to cases involving mental health issues, and suicide among police officers respectively.

[29]It was the fourth article which led to various events which were central to the claim. This is referred to below as the ‘Article’ to distinguish it from the others. The Article was produced [341-349]. It was titled ‘The end of the Strategic Command Course: A missed opportunity?’. The head note read as follows: ‘When police chiefs in the UK agreed that the Strategic Command Course – and its selection process, the Senior Police National Assessment Centre – were no longer fit for purpose, a new police executive leadership programme (PELP) was launched; but David Marshall, a long-serving officer and part-time policing lecturer and PhD researcher, believes chief officers’ efforts to influence the PELP intake process, and concerns over potential bias, have led to a missed opportunity to address the shortcomings of senior leadership training.’

[30]The Article covered a number of aspects of the issue of police career progression and how it was managed, and it included the claimant’s opinions. He believed that officers who had served time in their roles tended to be more capable than those who had been fast-tracked. He expressed his view on the role of chief officers, saying that crucially it involved protecting the operational independence of their forces, but that sadly that had not always happened, leading to external political influence. The Article moved on to discuss diversity, recognising the responsibility of chief officers to contribute to that objective but without allowing identity politics to undermine police neutrality, which the claimant feared was already happening. He cited examples of staff being encouraged to attend Pride events in uniform, taking the knee at Black Lives Matter protests and in one case an officer participating in a political rally.

[31]The Article then moved on to focus on the way that the second respondent assessed candidates for senior development and advancement. It discussed how the Strategic Command Course had been replaced by ‘a new police executive leadership programme (PELP)’. It explained some details of the format and gave an opinion on whether one of the reasons given for changes made to it was valid. It also noted two further criticisms of the course to have been that it potentially excluded those with caring responsibilities, particularly mothers, because of its lengthy residential element, and that candidates relied heavily on their Chief Constables endorsing them, allowing for subjectivity and a lack of transparency.

[32]Under a sub-heading ‘The biggest blow’, comment on the new programme – i.e. the ELP - was provided. Some of the changes to the format of the course were set out, namely that a 12-month non-residential modular structure had been adopted, there was a move towards assessment of a portfolio of submissions designed to show achievement of key competencies, and that the second respondent would review those submissions and have the final say over whether candidates had ultimately passed or failed in order to maintain consistency and objectivity in the process. The claimant went on to express doubt over the effectiveness of the changes in practice, citing in particular that chief officers were taking too great a role in assessing candidates, in the process marginalising the overview of the second respondent, and at the risk of objectivity being lost.

[33]The claimant developed this theme in the next section of the Article where he discussed his experience of chief officers tending to favour more junior colleagues ‘in their own image’. He commented that any such inherent subjectivity when aligned with a chief officer attempting to address underrepresentation of certain groups such as women or those of BAME origin could lead to distortion of the process of developing or promoting the best or most suitable candidates. He cited as an example of this a Chief Constable calling for a change to the law allowing positive discrimination so that addressing the question of under-representation could be more swifty done.

[34]The claimant noted next that the PELP (ELP) process required candidates to complete a detailed diversity monitoring form before their application would be accepted. He suggested that this allowed the information provided to be misused in order to achieve diversity targets. The claimant anonymously quoted a white middle-aged male officer who said that when applying for the programme he had been told the process was not for “people like him” but rather for under-represented social or ethnic groups. The claimant concluded that it was difficult not to be cynical to a degree about what had already become a ‘fairly bewildering process’. He expressed hope that the second respondent would reflect on this with regard to future intakes. He said that ‘fairness, transparency and a sense of meritocracy surely must be at the heart of any effective selection process, particularly for those aspiring to the most senior levels of policing.’ He added that any suggestion of bias being engineered into the process for the benefit of under-represented groups should be refuted with evidence. Again he referred to the requirement to provide diversity information, suggesting that a better approach would be to assess applications without awareness of any identifying personal characteristics.

[35]In the last section of the Article, headed ‘The gold standard’ the claimant gave credit to the second respondent for recognising and attempting to address some of the shortcomings of the previous selection process, whilst recording that it had not been fully successful in its objectives. He also acknowledged that bringing about change within a short space of time and achieving buy-in from the heads of 43 different forces had been a challenge. He believed that a move towards overall review by the second respondent was the right approach, but said it was regrettable that chief officers still had the influence that they did. This aspect was described as ‘a regressive step’ compared with the previous version of the programme. He believed that the ‘gold standard’ would be a process of assessing candidates without any material influence from their chief officers. He revisited the points that it was still possible for candidates’ applications to be unfairly supported or suppressed depending on their chief officers’ attitudes towards them, and that there was concern that the new programme was simply a mechanism to give extra support to officers from under-represented groups, as potentially suggested by the requirement for more extensive diversity information from candidates. The claimant concluded by saying that the introduction of the PELP/ELP involved laudable motivations, but that it was ‘a missed opportunity.’ Reaction to the Policing Insight article of 25 July 2023

[36]Ms Tuffin read the Article on 26 July 2023, the day after it had been posted online. She received an email bulletin containing a link to the Article and, seeing that it related to the ELP, she read it. She was surprised that the Article had been published without her knowing anything about it beforehand. The normal process as she understood it within the second respondent was for a member of staff, whether as author or if approached for input into a media piece, to notify the communications team who would then review the piece for accuracy and balance, and also notify any relevant departments out of courtesy. It was not unusual for the second respondent to prepare a follow-up response to such a piece in which it would state its own position.

[37]On reading the Article Ms Tuffin noted what she viewed as some inaccuracies. Those included that the programme had been referred to as ‘PELP’ when its abbreviated name had been changed to ‘ELP’ at the beginning of that year, and that the new module-based assessment approach was described as nonresidential when it combined residential and non-residential elements. These led her to suspect that the Article had not been reviewed and fact-checked.

[38]Ms Tuffin’s initial impression was that the Article was critical of the ELP, particularly the roles played by candidates’ senior officers. She considered this to conflict with the claimant’s seconded role, in which he would have to interact with the Chief Constables of various forces. This would necessarily involve discussing confidential aspects of the performance of the force in question in a sensitive way. She questioned whether Chief Constables might trust the claimant’s ability to maintain confidentiality had they read what she perceived to be openly critical comments about both senior officers of forces and also one of the second respondent’s key activities, and also quotes from senior officers, albeit anonymised. She had in mind that approval for the new course had been hard won, and that the audience for the Article would include senior officers, some of whom were not in favour of it.

[39]Ms Tuffin contacted Ms Noakes, the director of the ELP programme, and also the second respondent’s Head of External Communications to see whether either knew about the Article. They did not. Later in the day she spoke with CC Andy Marsh, the second respondent’s senior officer, to ascertain whether he had read the Article and if so what was his view on it. He had not read it and was surprised to hear of it. Finally on that day, Ms Tuffin spoke to Ms Thomas and then a Ms Tolley from the second respondent’s HR department about the Article. Ms Thomas had not known about it and expressed disappointment because she said she had asked the claimant to let her know about the publication of any pieces he would be involved with. Ms Tolley provided advice about how the claimant could be approached in order to ask him about the Article. She advised that a fact-finding meeting could be arranged and the claimant would not need to be offered the right to be accompanied at it. Discussions on 27 July 2023

[40]On 27 July 2023, a Thursday, Ms Tuffin invited the claimant to a Microsoft Teams meeting at 3pm. Ms Thomas was also invited. The meeting proceeded with the three individuals present. Ms Tuffin led the discussion and Ms Thomas took notes. A typed version was produced to the tribunal containing the notes Ms Thomas had originally taken and further notes the claimant added some time later on or around 21 August 2023 [354-355]. All three attendees agreed that the combined note represented a suitably accurate summary of the discussion, save that Ms Tuffin believed she had commented that the end of the secondment could trigger welfare concerns requiring support for the claimant. The tribunal accepted that the notes were an adequate summary save in this respect.

[41]The key features of the discussion therefore followed Ms Tuffin expressing her concern over the Article having been published without the claimant consulting with anyone within the second respondent. She said it was a serious issue as the college had to be careful about how its products were portrayed, and that she would have expected anyone writing about them to have their content fact-checked and to notify the relevant college lead, neither of which had happened. She felt that this omission was particularly notable as Ms Thomas had asked the claimant to be notified of articles he intended to publish. The claimant made the point that he wrote the Article in his capacity as an academic and not as an officer attached to the college. Despite being asked twice he did not agree that he had undertaken to let Ms Thomas know in advance of any articles he wrote at all, although he did not deny doing so either. He said the Police Oracle interview and his articles with Policing Insight were ‘two different things’ and pointed out that he would not expect Ms Thomas to have the right to advance notice of other academic work he produced. He assumed he would be free to express his opinions providing he did not refer to holding a role with the college.

[42]Ms Tuffin said that the claimant could be publicly identified as connected to the college, for example by way of his LinkedIn profile. The claimant accepted that he was identified there as working with the college, and that someone prepared to ‘join the dots’ could ascertain that.

[43]Next Ms Tuffin suggested that the claimant should have fact-checked the Article, and that by not doing so he had damaged the trust she had in him. She again emphasised the importance of how the college was portrayed within the wider police community. She said CC Marsh had a similar reaction and concern, and reiterated that there had been a lack of judgment and a breach of trust.

[44]In terms of the effect on the claimant’s position with the second respondent, Ms Tuffin said that it could be ended unilaterally and that she could not see how the required trust in the claimant’s judgment could be regained. She said the consequences were serious. The claimant did not agree and said he felt the college should encourage the expression of diverse views, and that debate was healthy. He said he had not been critical of the college in the Article, and had voiced the concerns of a number of other people as expressed to him. In reply Ms Tuffin said that the claimant was misinterpreting her concern, which was not about freedom to express opinions but that there had been a ‘missed opportunity’ to ensure the Article was factually accurate and as a courtesy to notify those within the college who had developed and held responsibility for the programme.

[45]The claimant responded by saying that the Article was not about the college or its programme so much as the wider issue of the influence of senior officers in the advancement of those seeking promotion. He said his beliefs were honestly held, and whilst he could have sought assistance to check the piece for factual accuracy, he believed it was substantially correct. He said that his passion for the subject had led him to this point, and he could only apologise and ask for the article to be taken down if required. The secondment meant a lot to him and he did not want it to end. He had received good feedback so far and believed he could restore any damaged trust and confidence if given the opportunity.

[46]Ms Tuffin took some encouragement from these last comments and said the college would need to consider whether any steps he proposed to take would be sufficient to restore trust. She repeated that the issue was ‘not about the content more about whether we can trust people out there being a representative of the College in conversations with others and senior leaders, and doing things in a way that [I] would expect them to be done as a member of the College’.

[47]The claimant asked Ms Tuffin to look at his performance so far in his role and said that it would be a pity if the secondment were to end given what he had already achieved and learned. He referred to previous articles he had written and said it would be a shame if one article were to derail his career given how significant a step in his career the secondment was. He referred to the impact it would have on him and his family were it to be ended over the Article, and asked to be judged on his track record as a whole rather than that alone.

[48]Ms Tuffin brought the discussion to an end by saying that she and Ms Thomas would consider and discuss what had been covered so far and not make a decision immediately. They would then speak to the claimant further. In concluding, the claimant repeated that if he had damaged trust and confidence he would reflect on that, and that he was happy to take the Article offline and to consult on future pieces.

[49]It was not explained in detail what discussion took place between Ms Tuffin and Ms Thomas immediately after the meeting, but both considered that there had been a significant loss of trust in the claimant’s judgment. Each separately noted that the claimant had initially not seemed to appreciate why publication of the Article had caused concern, and only come to recognise that it was being viewed so seriously when the possibility of ending his secondment was raised.

[50]Ms Thomas was due to be on leave the following day, 28 July 2023 and Ms Tuffin would be on leave for the two-week period beginning Monday 31 July 2023. They proposed a further Teams meeting with the claimant on the afternoon of 27 July while they were both still at work. This took place at 5.30pm. As with the earlier meeting, Ms Thomas took notes which were typed up, the claimant later made additions and all parties were content to accept the combined note [356-357] as a suitably accurate summary of the discussion, as were the tribunal.

[51]Ms Tuffin opened the meeting to say that she and Ms Thomas had discussed the matter. She added that although she had been initially disappointed that the claimant had not appeared to understand what their concern was and why it was viewed as serious in the earlier meeting, she could see by the end that he did wish to make amends. She went on to say that it was particularly important that Ms Thomas felt she could trust the claimant going forward, being the person responsible for managing him. She – Ms Tuffin – and CC Marsh needed to know that Ms Thomas was comfortable doing so.

[52]Next Ms Tuffin repeated that both wished to give the claimant a chance to set out the steps he would take to re-establish trust, and that Ms Thomas would consider those in the following week. Ms Thomas spoke to the claimant about removal of the Article, asking whether those at Policing Insight knew about his connection with the college and saying that it was important to make clear that it was being withdrawn due to inaccuracies rather than because his opinions were being suppressed. The claimant confirmed that his role with the college was not known about, and that he would ask for it to be removed.

[53]Ms Tuffin added that the matter was about courtesy, respect and accuracy and not stifling his views, and that the claimant should reflect on that. Again it was said that he should come back with his further thoughts in the following week, which the claimant agreed to do with a view to having another meeting with Ms Thomas. She said the matter was serious but the college wanted to give the claimant a second chance. The claimant said he had been shellshocked, but acknowledged this and apologised. The last entry in the note recorded that the claimant would reflect, provide his proposals the following week, and then Ms Thomas would take a decision regarding whether the secondment was to continue. Sharing of the reflective practice recommendation with the claimant and second respondent

[54]The first respondent’s PSD team emailed the claimant to notify him of the reflective practice recommendation at 09.02 on Wednesday 26 July 2022 [361-362], the day before his meetings with Ms Tuffin and Ms Thomas. This was the first indication of any kind the claimant received about the issue. The email described the concern as apparent exaggeration or elaboration of evidence provided by him in the ELP application, but did not contain further detail. It quoted the first respondent’s definition of practice requiring improvement, namely ‘Underperformance or conduct not amounting to misconduct or gross misconduct, but which falls short of the expectations of the public and the police service as set out in the policing Code of Ethics – and will be handled locally through the Reflective Practice Review process. This is not a disciplinary process, rather an opportunity to reflect, learn and improve.’

[55]The following day at 09.43 the claimant emailed a Mr Fulton within PSD to ask for further details of the allegation and a copy of the referral form. Mr Fulton replied, copying in Ms Saund and asking her to provide what the claimant was entitled to receive. The email was friendly in tone and Mr Fulton signed off by reassuring the claimant, ‘Please remember RO is not a formal sanction of any kind it will not prevent you progressing etc. It is exactly what it says an opportunity to reflect.’

[56]Ms Saund provided some further details of the allegation but not all of the detail contained in the referral form or her assessment document. The claimant replied to ask which of his examples had been challenged. Ms Saund confirmed at 16.42 that it was those for whom ACC O’Callaghan was the named verifier, and hence he had been identified to conduct the RP process with the claimant.

[57]The PSD team’s email to the claimant on 26 July 2023 appears to have been the point at which CC D’Orsi became aware of the RP recommendation. No documentary records to that effect were produced and she did not give evidence to the tribunal. However, it was explored and recorded as part of the claimant’s later grievance to the first respondent that CC Marsh had unexpectedly telephoned CC D’Orsi on 27 July 2023, and that when she answered the call she assumed it was to discuss the RP referral, whereas it was to convey that the second respondent was considering ending the secondment as a result of the Article. She was unaware at that time of the Article or any concern it had caused. CC Marsh did not mention the RP matter or appear to know about it. In cross examination Mr Furness said CC D’Orsi and he had spoken about the RP recommendation and that they agreed he should send details to CC Marsh. He also said he became aware around that time of CC D’Orsi and CC Marsh having spoken by telephone, but was not present for the call and knew no further details. He was unclear whether it was 26, 27 or 28 July when each of those two conversions took place. From the evidence available therefore, the tribunal concluded that:a. CC D’Orsi found out about the RP matter on or shortly before 26 July,

b. CC Marsh telephoned her on the morning of 27 July to notify her that the second respondent was considering ending the secondment because of the Article (after himself having been told about it the previous afternoon by Ms Tuffin),

c. CC D’Orsi did not know anything about the Article at this point and similarly CC Marsh did not know about the RP matter,

d. CC D’Orsi did not mention the RP matter during the call, but some time later that day, or the following morning, she discussed doing so with Mr Furness and asked him to share the details with CC Marsh, which he did by making an initial call and then sending an email with the details at 10.37 on 28 July 2023 [371-372]. The email begins by referring to ‘the allegation concerning T/C/Supt Marshall’, the use of the definite article suggesting that it had already been referred to between them.

[58]The above findings have particular relevance to a matter raised by the claimant in the course of the hearing and revisited in closing submissions. He believed that CC D’Orsi had mentioned the RP matter to CC Marsh during their telephone call on the afternoon of 27 July 2023, based on evidence disclosed at a relatively late stage in the claim, and particularly after the first respondent had replied to his data subject access request. The problem this was said to have created was that the list of issues, specifically issues 6(iii) and (v), lagged behind what the evidence showed, as they were framed on the basis that the initial disclosure of the RP matter to the second respondent was by Mr Furness in his email on 28 July 2023. The respondents argued against revising the list of issues, briefly on the basis that the claimant could have addressed the matter before the hearing commenced. It can hopefully be appreciated given the findings above that those issues were correctly framed after all, and there was no need to consider the arguments for and against revising them.

[59]The email from Mr Furness to CC Marsh enclosed details of the allegation in the form of a copy of the text from Ms Etebar’s original referral form. He said that the matter had been assessed by PSD as practice requiring improvement, that the reflective practice would be provided by an ACC within the first respondent, and that the claimant had been offered various dates in August to pursue that. The information in the email about the allegation was more detailed that that contained in the email the claimant received from PSD, although that was not consciously intended to be the effect – the emails were merely written by two different people independently of each other. CC Marsh replied that afternoon to acknowledge the email and he referred to being concerned about a ‘matter of trust involving a media piece T/C supt Marshall authored’, saying that his lead for resolving that was Ms Thomas. He went on to say that for welfare reasons, ‘we are not going to pursue our resolution on a Friday afternoon but Nerys will resolve this next week. I am coming back to you as we are considering whether it is appropriate to continue with T/C supt Marshall’s secondment. I have discussed this in principle with CC D’Orsi and I will of course keep you closely informed.’

[60]On behalf of the claimant it was suggested that the phrase ‘our resolution’ betrayed that CC Marsh was the real decision maker as to the future of the secondment, or at least had a material influence, and that a decision had already been made. The tribunal did not accept this to be the case. The use of ‘our’ signified to Mr Furness, representing the first respondent, that it would be a decision of the second respondent, nothing more. The surrounding contextual wording made clear that Ms Thomas would be the ‘lead’ and that termination of the secondment was being considered, but would only be resolved in the following week.

[61]Ms Etebar asked a colleague to send her a copy of the secondment agreement. There was no record of when and how she made the request, but its response was in the form of an email to her at 10.30 on 28 July 2023. The tribunal concluded, in the absence of direct evidence, that she had been asked by CC D’Orsi to obtain a copy following the call the latter received from CC Marsh the day before. She forwarded the agreement together with the full text of the Article to Mr Furness 14 minutes after receiving it [363-369]. She commented that the agreement allowed the second respondent to terminate it on 28 days’ notice without a right of appeal.

[62]Ms Etebar was not involved in the sharing of the RP matter with the second respondent and had no knowledge at this time that it was happening. She only became aware that it had happened on 16 August 2023, after the secondment had ended.

[63]On 28 July 2023 Ms Tuffin was working as normal and Ms Thomas was on leave. CC Marsh, having received Mr Furness’ email that morning, did not disclose it to Ms Tuffin, but told her that the first respondent had some information to share which had a bearing on the claimant’s secondment. She was to expect further details later in the day from Mr Furness. By the afternoon of that day she had heard nothing further and telephoned Mr Furness, which prompted him to send her an email at 17.11 [373]. She telephoned Ms Thomas to tell her the email had been received, then forwarded it before going on leave for the next two weeks, saying ‘I need to make you aware of the following information which has been submitted to us by BTP.’

[64]Mr Furness’ email to Ms Tuffin was shorter than the one he sent to CC Marsh. It said as follows: ‘Dear Rachel, As T/C Superintendent David Marshall is currently seconded from British Transport Police to the College of Policing, I would like to bring to your attention a recent concern relating to him which was submitted to our PSD for consideration. The concern raised was as follows: It would appear that you have exaggerated or elaborated evidence provided in your application in order to obtain a place on a chief officer development programme. This has been assessed by our PSD as a matter which is suitable to be handled under Practice Requiring Improvement. Our ACC (Specialist Capabilities) will conduct the Reflective Practice next month when a suitable time can be arranged with David. Regards, Michael Furness Chief of Staff’

[65]Also on 28 July 2023 Ms Tuffin checked the Policing Insight website and noted that the Article had been removed. She notified some colleagues including Ms Thomas. Termination of the secondment and beginning of illness absence

[66]Ms Thomas picked matters up on Monday 31 July 2023 when she returned to work. She read the email from Mr Furness to Ms Tuffin and took from it that he had been accused of exaggerating his application to join the ELP. She took this a further cause for concern over the claimant’s ability to represent the college in his seconded role. She reached a decision that day that the second respondent would end the secondment and spoke to an HR colleague, who advised her to hold a meeting with the claimant to tell him this. She tried to contact the claimant that morning by text, work telephone and personal mobile before receiving an email from him in the early afternoon saying that he was unwell and sought an occupational health (‘OH’) referral [377-378]. This began his period of absence from work, discussed further below.

[67]That afternoon Ms Thomas replied to the claimant’s email and said she would notify the first respondent of the claimant’s absence. They, rather than the second respondent would be in a position to arrange an OH referral. She provided details to Mr Furness by telephone and then forwarded the claimant’s email.

[68]On 1 August 2023 Ms Etebar completed an OH referral request form which she sent to Mr Furness for review and comment. He changed one piece of text, which involved deleting a proposed question to the OH specialist and adding another in its place. The deleted question asked whether the claimant was well enough to continue discussions about his actions and whether the secondment should be terminated, noting a concern that a delay or lack of certainty in any decision may not assist the claimant’s health. The new question asked whether providing the claimant with clarity over his expected return to the first respondent, and assurance that it would provide him with full support in the process, would assist in his recovery. The inference the tribunal took from this was that Mr Furness at least had the understanding by the early afternoon of 1 August 2023 that the second respondent was going to end the secondment. Most probably he was told that, or at least given a clear impression, by Ms Thomas the previous afternoon when they interacted in relation to the claimant reporting his illness.

[69]The claimant emailed Ms Thomas a fit note certifying that he was unable to work until 31 August 2023.

[70]In the afternoon of 1 August 2023 Ms Thomas, Ms Etebar and Mr Furness held a Teams meeting to discuss the position in relation to the claimant’s absence and secondment. Ms Thomas said there had been a breakdown in trust and the college now had serious concerns about the claimant’s professionalism. She explained that she had decided to end the secondment and the possibility of doing so earlier than by serving 28 days’ notice was discussed. Ms Thomas recorded in a note that the first respondent was supportive of doing so as it meant that a single organisation could deal with all aspects of managing the claimant’s absence.

[71]On 2 August 2023 at 7.09am Ms Etebar emailed Ms Thomas to point out that the Article had been removed from the Policing Insight website. Later the same day the claimant reviewed and completed the OH request form. He indicated that it should not be shared with the second respondent. Ms Etebar sent it on to the first respondent’s OH provider the next day. A telephone appointment was arranged for 8 August 2023.

[72]On 3 August 2023 Ms Thomas spoke further with an HR colleague. She made a note that a ‘decision was made to proceed’ at this time, although she had made that decision, at least in principle, three days before. Ms Thomas met with CC Marsh the next day to update him on her decision and he was also described as ‘supportive’. Ms Thomas waited until her HR advisor was back from leave on 8 August 2023 and had a further discussion, including in relation to a proposed email going to the claimant and requesting a meeting with him on 10 or 11 August 2023 [421-422]. It was agreed that the claimant would be given five days’ notice of the meeting in line with procedures relating to the second respondent’s own staff. An email was therefore sent to the claimant that morning proposing that the meeting be on 15 August 2023. The following day the claimant emailed back to say that he would not be attending the meeting. Ms Thomas took further HR advice that afternoon. She then met with an HR colleague the following morning, 10 August 2023, and they agreed that Ms Thomas would email the claimant later in the day to confirm that the secondment would be terminated. Thus, there was in the end no meeting with the claimant about the ending of his secondment, although by 31 July 2023 it had been decided that this was going to happen, and any meeting would have involved confirming that termination would occur rather than discussing whether it would.

[73]An OH report was prepared following the claimant’s appointment. In relation to the question which Mr Furness had added to the referral, the response was that the claimant’s preference was to continue with the secondment, and that he did not wish to consider returning to the first respondent as he believed the issues ‘have not had an outcome as yet’. This was understandable given that he had not yet been told a decision had been taken to end the secondment.

[74]Ms Thomas prepared a letter to the claimant confirming the end of the secondment, which was sent to him on 10 August 2023 following review by HR and copied to the first respondent [432-434]. The final day was confirmed as 15 August 2023. On receipt of a copy Ms Etebar commented that as the normal notice period was 28 days, the claimant may push back on the decision. She expressed further thoughts on this to Mr Furness the following day in an email where she outlined the provisions of the secondment agreement dealing with termination [438-439]. She drafted an email intended to go to Ms Thomas asserting that 28 days had to be served. Mr Furness agreed with her that there did not appear to be a mechanism for circumventing the notice period in the circumstances. He spoke to Ms Thomas who said she believed the notice period could be shortened if both respondents agreed to it. Mr Furness accepted this interpretation of the relevant term and agreed to the shortening of the notice period to 15 August 2023 [441]. The tribunal found that she simply recognised that the ending of the secondment was now a fait accompli and that there was little point in debating that, or the precise date on which the claimant would return to the first respondent.

[75]The claimant emailed Ms Tolley to convey that he was surprised and deeply distressed. He referred to the fact that, following the two meetings on 27 July 2023 it was agreed that he would provide written submissions on how he would rebuild trust. He asked why that option had been taken away. He also suggested that the second respondent had no basis for shortening the 28-day notice period. He asked for minutes of the two meetings. Ms Tolley replied on 15 August 2023, adding responses to the points he had raised and enclosing notes of the meetings [489-491].

[76]Consequently, the claimant’s secondment ended on 15 August 2023 and from the following day sole responsibility for him as a worker reverted to the first respondent. Ongoing illness absence, consideration of redeployment and resignation

[77]As a condition of the secondment agreement the claimant had relinquished his post with the first respondent. In his absence however, it had not been permanently filled and was being undertaken by a Superintendent Lorna McEwan.

[78]Ms Etebar drafted an email she wished to send to the claimant and asked Mr Furness to review it on 11 August 2023. She outlined that the first respondent’s policy was not to return him to his substantive role but to place him into redeployment, and that the options could be discussed when the claimant’s health improved. She sent the email two days later. Both she and Mr Furness were aware that it was intended to advertise the claimant’s previous post ‘for promotion’, i.e. as a vacancy to be filled permanently, at the end of that month. She emailed People Services colleagues to notify them that the claimant would be returning to his substantive grade as Superintendent and should be allocated an unfunded post pending a decision on where he would be deployed. She made arrangements with other colleagues for the claimant to be provided with a new laptop, mobile telephone and ID and warrant card.

[79]On 16 August 2023 Ms Etebar received an email from Superintendent David Oram of the Police Superintendents’ Association, who the claimant had engaged to represent him in internal procedures [479]. He raised that the claimant had become aware of the second respondent receiving details of the RP referral and was concerned that this had played a part in the termination of his secondment. He asked whether that was the case. Ms Etebar did not know that was what had happened, and asked Mr Furness for advice. He confirmed to her that as the second respondent was providing line management to the claimant, it had been informed of the RP recommendation, and that this was in line with normal practice. She replied to Supt Oram to confirm that this had happened, adding that she could not speculate as to what part it had played in the process.

[80]The next day the claimant emailed Ms Tolley within the second respondent to ask for further details of the information shared by the first respondent, and to request details of the college grievance procedure as he intended to make a complaint. Ms Thomas contacted Mr Furness to update him and to say that the college was encouraging the claimant to seek any further information from the first respondent. She emailed the claimant to say the same, and to provide a link to the second respondent’s complaints procedure.

[81]ACC Allan Gregory was identified to be the claimant’s wellbeing manager and he wrote a letter to the claimant on 21 August 2023 introducing himself as such [496-497]. Among other information it proposed that they had a telephone call or Teams meeting and confirmed that when the claimant was fit to return to work he would be posted to the PMO team and that his position would be considered as part of a posting panel (discussed below) which was expected to take place in October 2023. Although not explicitly stated in the letter, his previous role had still not been filled and so a return to it was still a possibility. The claimant emailed ACC Gregory the next day with his response. He said that he wished only to be contacted by email, and in relation to redeployment he referred back to what Ms Etebar had said to him, namely that no steps would be taken to deploy him until his health improved, and there would be a discussion about options at that point. He said that he hoped any discussions regarding where he was to be posted would wait until he was well enough to engage in them properly. ACC Gregory wrote a further letter on 24 August 2023 in which he emphasised the importance of meaningful contact and said that the redeployment position had moved forward and there had been a decision since Ms Etebar’s email to redeploy him on an interim basis, which ACC Gregory was happy to discuss.

[82]Subsequent contact between ACC Gregory and the claimant in relation to the claimant’s wellbeing and absence management was limited to the extent that the claimant required. The claimant agreed to speak with ACC Gregory on 11 September 2023 by telephone and they established a pattern of doing so every two weeks. The calls were usually no more than a few minutes long as dictated by what the claimant felt he needed to say. The claimant submitted a fit note dated 29 September 2023 in which his GP certified him as unfit to work for the next three months.

[83]Ms Etebar identified a role which she thought would be suitable for the claimant. It had just been created and was about to be advertised. It was for a Programme Lead for the Optimising Police Model. It was at Superintendent level and she believed it suited the claimant’s experience and would offer him the opportunity for further development. Budget for the role had been approved and it could be performed from Scotland. A decision was taken not to advertise the role until it had been offered to the claimant. Ms Etebar provided details to Superintendent Oram to pass on to him. After doing so he replied that the claimant did not want to discuss the role or any others while he was ill.

[84]Roles at Superintendent level and above are approved by ‘posting panels’ who convene at regular intervals. A panel meeting took place on 10 November 2023. Superintendent Oram was given a list of four open vacancies at the claimant’s level in advance. One of those was his previous role and he expressed an interest in it. He was not reappointed to it by the panel at that time as he was certified as being unfit to work until the end of the year and would not have been able to undertake it until at least then. A decision was therefore deferred and the role was not permanently filled at that time [1751]. Superintendent McEwan remained temporarily n the role in the meantime.

[85]The claimant resigned by letter which he emailed to ACC Gregory on 24 November 2023 [727-728]. Both spoke later that day and ACC Gregory made a written record of the conversation. The claimant was not resigning with immediate effect and spoke of his notice period which he said he appreciated needed to be managed. Grievance/complaint to second respondent

[86]The claimant emailed a ‘Statement of Grievance’ against the second respondent to Ms Tolley on 22 August 2023 [509-522] with five documents attached as appendices – the Article, his secondment agreement, Home Office statutory guidance, the original notes of the meetings of 27 July 2023 and a further version with his own additions. Ms Tolley circulated it internally, commenting that the claimant had been asked to raise a complaint rather than a grievance. The distinction was that grievances were open to existing employees, and issues raised by anyone else were dealt with under the separate complaints procedure.

[87]Owing to the findings the tribunal ultimately made, the process followed to deal with the claimant’s complaint is outlined in brief terms.

[88]Louise Meade, Head of Occupational Psychology with the second respondent, was appointed to investigate the claimant’s complaint and emailed him to introduce herself in that capacity on 12 September 2023. The claimant was content to speak to her at any point if she needed.

[89]The process which Ms Meade followed is described in the report she prepared [688-703]. She interviewed the claimant, Ms Tuffin, Ms Thomas and the two HR advisors who provided advice. She made findings of fact based on these conversations and the documents she was referred to, before responding to each of the thirteen complaints. One was upheld and five were partly upheld, all relating to whether correct procedure of guidance had been followed in the process of terminating the secondment. Ms Meade was satisfied that the decision to end the secondment had been justified on the basis of loss of confidence in the claimant, and that his European Convention on Human Rights (‘Convention’) rights had not been infringed. Recommendations were made as to the standards applicable to secondees and the provisions in relation to termination.

[90]Ms Meade’s report was passed to Nicole Higgins, Head of Engagement and Implementation on 15 November 2023. Ms Higgins had discretion whether to accept Ms Meade’s findings and recommendations or not. After reviewing the report and related documents over the following weekend she provided her response to the complaint to colleagues with a view to it being communicated to the claimant. This was done by letter on 22 November 2023 [711-713].

[91]The grievance was partly upheld. Ms Higgins accepted that the claimant had not been given adequate details of the reason why the secondment had been ended. Related to this, she believed that the process followed, beginning with the two meetings on 27 July 2023 and ending with communication of termination of the secondment, had been undertaken in good faith but did not fully follow external Home Office guidance in relation to secondments. She identified this as a point for future improvement. She also accepted that there did not appear to be a permissible basis for ending the secondment without providing 28 days’ notice. She did not uphold the claimant’s complaints of infringement of Convention rights such as the right to freedom of expression. Nor did she find it unreasonable that the secondment had been ended in the circumstances. Grievance to first respondent

[92]The claimant submitted a grievance against the first respondent on 17 September 2023 [595-608] with three appendices, namely the Article, Home Office statutory guidance and the secondment agreement.

[93]As with the earlier complaint against the second respondent, the process is summarised below but not documented in extensive detail. In essence, the tribunal found that no aspect of the process supported any of the claimant’s legal complaints. That is not to say that all aspects of the process or its outcomes were fully endorsed by the tribunal, but this claim did not involve legal complaints that required analysis of the general fairness or thoroughness of the process or the overall reasonableness of its outcomes as might be required in, say, a claim of unfair dismissal. The tribunal records in particular that it found that the sharing of information about the RP process with the second respondent was done with the motive of allowing the claimant to be better managed as the first respondent claimed, and not related to the holding or expression of his protected beliefs. Similarly, the tribunal concluded that the first respondent’s approach to the second respondent’s process of ending the secondment, including the shortening of the notice period, was dictated by pragmatism and its ultimate lack of control over the process. It did not refrain from challenging the second respondent because of the claimant’s protected beliefs. These matters are further discussed below in the section of the judgment titled ‘discussion and decision’.

[94]The grievance was initially to be dealt with internally by ACC Gregory but, following receipt of documents in response to a data subject access request, the claimant submitted a second grievance to ACC Gregory on 10 October 2023. This included complaints against the chief officer team including CC D’Orsi. He said he considered that his complaints should be dealt with by the British Transport Police Authority (‘BTPA’), an independent body with oversight of the first respondent, because of the allegations made against more senior officers.

[95]It was agreed that BTPA would investigate the claimant’s grievances of 17 September and 10 October 2023. The Chief Executive, Hugh Ind, had no previous experience of a complaint being made against a Chief Constable of the first respondent by a member of the force as opposed to someone from the general public. He considered that the BTPA complaint procedure was appropriate nevertheless [1648-1650]. He asked Nick Hawkins to take on the role of dealing with the grievance. Mr Hawkins was a BTPA member and the Chair of its People and Culture Committee. He was a former practising barrister and had been a Chief Crown Prosecutor before holding other public offices. He was assisted in the process by Susan Kohler, Head of Governance and People for BTPA.

[96]Mr Hawkins reviewed the relevant documents and via ACC Gregory an initial scoping meeting with the claimant was arranged. This was held by video on 31 October 2023. A note summarising the points discussed was prepared and its content was agreed [664-667]. Ms Kohler and Supt Oram were also present, as well as Mr Ind.

[97]Mr Hawkins next arranged a lengthier meeting with the claimant in person to explore the grievances in more depth. This took place in Glasgow on 28 November 2023 over some three hours. This was audio recorded and a transcript produced [1669-1712]. Again Ms Kohler and Supt Oram were present. Mr Ind was not.

[98]Mr Hawkins next spoke to six other individuals identified in connection with the grievance, including CC D’Orsi, ACC O’Callaghan and Ms Etebar. No notes were kept of the discussions.

[99]On 12 December 2023 Ms Kohler emailed the claimant a grievance outcome letter which Mr Hawkins had prepared [774-782]. His conclusions were that no aspect of the grievances should be upheld.

[100]The claimant wished to appeal the decision and his request was referred to Mr Ind. The claimant submitted appeal grounds [821]. Mr Ind nominated the Deputy Chair to deal with the appeal, but later took it on himself when it became clear that individual was not available. He reached the view that Mr Hawkins’ conclusions were correct and did not uphold the appeal. Discussion and decision Time bar

[101]The starting point when dealing with issues of time bar is section 123(1) EqA which states as follows: ‘123 Time limits Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of—(a) the period of 3 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.’

[102]It was clear that a number of the claimant’s complaints had not been presented within the three-month time limit. As set out in the list of issues, any complaints arising before 6 October 2023 were out of time unless they were part of either a continuing act or a series of similar acts or failures (as appropriate, given their statutory basis) which continued after that date.

[103]This applied to essentially all of the claimant’s case save any complaints in relation to(i) the first respondent’s steps (or lack of them) after that date towards identifying a role for him,

(ii) his resignation, and particularly whether it amounted to a discriminatory constructive dismissal, and

(iii) each respondent’s respective rejection of his grievance or complaint and either the denial or rejection of any subsequent appeal.

[104]It had been decided at a previous stage in the claim that the question of time bar should be dealt with at the full hearing of the claim. This is often the best approach given the tribunal’s overriding objective, because often only by hearing all of the relevant evidence can questions such as whether there was a continuing act or series of similar acts be most fairly determined.

[105]Other questions which may arise are often best addressed at a full hearing for the same reason, such as whether it is just and equitable to decide any complaints on their merits which are technically time-barred. This often involves exploring questions such as why the complaints were not raised earlier when they would have been within time, why the complaints were ultimately raised when they were, what was the claimant’s degree of knowledge of the relevant law and tribunal process, what advice and assistance if any they received at various points in time, and what are the actual or provisional merits of the late complaints they wish to have decided. Even if earlier complaints do not relate closely enough to later ones to form a continuing act, there may be relevance in the similarities and differences between them.

[106]An employment tribunal has a wide discretion to extend time under section 123(1)(b). However, the starting point should always be that the primary time limit of three months should be applied. Only if it is just and equitable to extend time should that happen.

[107]Neither party is subject to a burden of proof in relation to the issue, although a decision to extend time must be based on some relevant material or facts. That need not necessarily be provided by the claimant in such a case, although often this will happen as they are the party seeking the exercise of the discretion.

[108]A helpful list of factors to consider was provided in the cases of British Coal Corporation v Keeble

[1997] IRLR 336

and DPP v Marshall

[1998] IRLR 494

, namely:a. The length of and reasons for the delay,

b. The extent to which the cogency of the evidence is likely to be affected by the delay,

c. The extent to which the respondent had co-operated with any requests for information,

d. The promptness with which the claimant acted once they knew of the possibility of taking action, and

e. The steps taken by the claimant to obtain appropriate professional advice once they knew of the possibility of taking action.

[109]However, it has been made clear in subsequent cases that this is not a closed or definitive list to be slavishly followed. Some factors will be more relevant in a given claim than others.

[110]The tribunal determined that each respondent’s handing of the grievance made against it was an act or process discrete from what had gone before, namely the steps taken by various individuals culminating in the termination of the secondment and the claimant returning to service with the first respondent. This was because there was no crossover, in terms of identity or influence, between those individuals and the people who later dealt with the grievances. Therefore, the grievance processes did not represent a continuing act extending back in time any further than the first steps taken in response to each grievance being intimated – on 22 August and 17 September 2023 respectively.

[111]The tribunal reached the conclusion therefore that the earlier complaints under the EqA were provisionally time-barred and were not brought within time by being part of a continuing act. The whistleblowing detriment complaints are discussed separately further below.

[112]However, it decided that nevertheless it should hear all of the claimant’s EqA complaints on their merits because it was just and equitable to extend time in order to do so. The reasons for that were:a. They were at least potentially valid complaints. They were clearly and competently framed and could have succeeded had there been sufficient evidence to support them;

b. Although the claimant instructed legal representation at a point when he could have presented his claim within time, it was also appreciated that he was medically unfit to work for reasons relating to his mental health;

c. Similarly, the tribunal accepted he was more focussed on gaining a resolution via the grievance processes, which was at least a partially explicable motive;

d. He did not become aware of all of the relevant facts until some time after the secondment ended, such as the sharing of and reliance on the RP recommendation and, later, other material recovered through his data subject access request;

e. The claimant did act quickly enough to ensure that at least his later complaints were within time;

f. The processes and events on which the earlier complaints were based were well documented and there was little risk that evidence had been lost or degraded;

g. The respondents’ witnesses were all still available and had good recollection; and

h. The prejudice to the claimant in potentially having valid complaints rejected because of questions of timing was greater than the prejudice caused to the respondents in having to answer them on their merits slightly later than might have been the case.

[113]The tribunal therefore, having heard all of the evidence, decided to determine all of the claimant’s complaints under the EqA on their merits.

[114]For completeness, the tribunal noted that the statutory treatment of whistleblowing detriment claims is different as regards whether they can be decided on their merits despite being out of time. The test is whether it was ‘not reasonably practicable’ for the claim to be presented on time. Even if a claimant can satisfy that more exacting standard, the tribunal must also be content that they presented their claim within a reasonable period of time thereafter.

[115]In this claim all allegations of whistleblowing detriment were founded on the raising of the two grievances, and were presented within time. This included the allegation that the first respondent had failed to take adequate steps to source alternative employment between 15 August and 24 November 2023, as that was considered by the tribunal to be a continuing act which extended beyond the cut-off point. The alleged protected beliefs

[116]The claimant asserted four protected beliefs, more specifically three positive beliefs and one negative or lack of belief. These are set out as issue 3 of the list of issues.

[117]The parties were agreed that the judgment of the EAT in Grainger plc v Nicholson

[2010] ICR 360

was a necessary port of call after the wording of section 10 of EqA itself. At least as regards any positive belief, for it to gain protection under section 10 as a philosophical belief it must meet five requirements as follows:a. The belief must be genuinely held;

b. It must be a belief rather than a viewpoint based on the present state of information available;

c. It must relate to a weighty and substantial aspect of human life and behaviour;

d. It must attain a certain level of cogency, seriousness, cohesion and importance; and

e. It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

[118]The first alleged protected belief was ‘a belief in the importance of political neutrality and/or [the] operational independence of the police force’. In the course of the hearing the respondents conceded that this satisfied the Grainger criteria, and had been manifested in the Article. The tribunal considered that it still had to decide for itself whether those criteria were met, but was satisfied on the point. The claimant spoke in his statement of this belief and was unchallenged on whether he held it. It was genuine. It was also a belief rather than an opinion based on current information. The tribunal considered that requirement to have been met particularly because the belief had been held for decades and through a variety of circumstances where it might have been called into question. It had endured, and was unlikely by now to be changed by any new evidence which might emerge. It was discussed in evidence, and indeed could be said to be common knowledge currently, that the possibility of the police force being influenced or directed, whether externally or from within, by political or private interests is a real and serious matter. The viewpoint that it should not be so influenced was self-evidently a cogent and serious one, as historical examples elsewhere attest. And it followed that the belief deserved respect in a democratic society and did not impinge on the fundamental rights of others.

[119]The second alleged protected belief was ‘a belief in there being a moral obligation to maintain and uphold [the] neutrality [of the police force] including but not limited to an obligation to speak out as to the perceived threats to it’. The words in square brackets were not part of the framing of the belief in the list of issues, but given that the belief was originally phrased as ‘an obligation to maintain and uphold that neutrality’ (emphasis added) in the particulars of claim, they are implicit. The claimant argued that this followed from the first belief and was inseparable from it. The respondents did not accept this to be so. They argued that there was a lack of evidence of this distinct viewpoint and that for it to have been genuinely held, the claimant would have had to apply it in every situation which touched upon it. They observed by way of example that the claimant would have had the opportunity to refuse to travel in a vehicle with ‘Pride’ branding, or at least vocalise his opposition to it, but did not do so. The tribunal considered this to be too high a standard to set. It accepted that the claimant, like many people from day to day, knew his own mind on the subject but simply chose not to fight every single battle which might present itself. This did not detract from the genuineness of the belief. The act of ‘speak[ing] out’ was stated as an example of how the belief could be practiced, but not the only way. On other occasions he did ‘speak out’, such as by refusing to wear Pride branding on his uniform or attend a Pride parade, or to take the knee in support of the Black Lives Matter movement.

[120]The respondents also argued that this was not a belief but merely a viewpoint based on prevailing information – namely whichever causes or movements were prominent from time to time. As such it could change. The tribunal was not persuaded by this point either. Whilst the claimant would have had to consider his stance on a number of events, causes or circumstances which arose over his career, that stance was always rooted in the same belief, which did not change. It was not suggested, for example, that the claimant would take an opposing view on the moral need to uphold neutrality in a future scenario, or that he had done so in the past.

[121]The tribunal agreed with the claimant that this alleged belief was in effect no more than an extension of the first protected belief. A belief in the neutrality of the police force would be a somewhat hollow concept without it also being considered morally necessary to uphold it. Because of this, it met the Grainger requirements in the same way. It was equally genuinely held, similarly enduring and unlikely to change in the face of further evidence, and it was serious, cogent and worthy of respect in a democratic society.

[122]The third alleged protected belief was ‘a belief in the need to ensure that the commitment to independence is reflected in career progression within the police force so as to ensure that progression is based solely on merit’.

[123]The tribunal accepted that this belief followed from the first belief, but it was a narrower example and not an inevitable extension of it. That is to say, it would have been likely, but not certain, that the claimant would have held the third belief given that he held the first (and second). That did not however guarantee that it was protected.

[124]The tribunal took some time to reach a conclusion on whether the claimant genuinely held this belief. In favour of that finding was his own evidence contained in his witness statement. He spelled out that he believed advancement in all professions, the police service included, should be based exclusively on merit and not take into account any protected characteristics of those concerned. He spoke of experience of an excessive focus on meeting diversity targets and ‘tokenism’ within recruitment or promotion processes, which at times he vocally criticised. On the other hand, and as highlighted by the respondents, the claimant provided examples of how he believed he had demonstrated the criterion of ‘equality, diversity, inclusion and valuing difference’ and taken action to deliver the objectives of the Police Race Action Plan in his ELP application submitted in March 2023 [241-244]. He spoke of volunteering to coach candidates for Superintendent roles ‘so that I could better contribute towards diversity and inclusion issues within the police service, share my experiences and insight with others in a positive way, and to learn myself from the experience and raise my personal awareness of the issues, particularly the barriers faced.’ He said that providing coaching to two female officers, one of whom was black, ‘raised [his] own personal awareness of some of the challenges and barriers people from underrepresented groups can often face as they strive for progression’ and demonstrated that ‘we still have huge amounts to do in this regard’.

[125]The conclusion the tribunal ultimately reached was that the claimant did genuinely believe that career progression was based solely on merit. To him that meant evaluating candidates objectively on the basis only of aptitudes and experience relevant to the role. A threat to that was the tokenism or quotafilling which he said he had experienced. This was not inconsistent with his mentoring of officers with protected characteristics. He described what he did, and his motives, as being related to removing barriers to opportunity, for example by discussing how a menopausal colleague could deal with memory recall issues or cope with negative language from others. In doing so he was not speaking of giving such individuals any kind of preference in a promotion scenario, say, but simply speaking about ways which might ensure they were not prevented from being fairly evaluated on their merits because of unduly rigid procedures or the attitudes of others. He saw his actions as helping them to be in a situation where they could be fairly assessed on their merits, but they would still have to be evaluated at that stage in the same way as everyone else, and not be given any credit for a protected characteristic.

[126]The respondents also argued that this potential belief failed the test of being a ‘weighty and substantial aspect of human life and behaviour’ because it was too parochial in its scope, per Harron v Chief Constable of Dorset Police

[2016] IRLR 481

. The point taken from Harron was that it was not an error of law to consider a matter confined to a particular workplace too narrow to pass this element of the Grainger test provided that it was based on reasoned analysis rather than automatically assumed. The alleged belief in that case was that public funds in the public sector should be used responsibly. Whilst in the current claim the alleged belief was also confined to the claimant’s employer, not all employers were created equally. The tribunal was conscious that the claimant’s alleged belief extended to the practices of all police forces within the UK and that the status of the police service in society is particularly important and distinct. In that sense it holds a unique status similar to that of the BBC as considered in Maistry v BBC ER/1313142/10 which, though a first instance tribunal judgment and not binding, was similarly reasoned on this point. Thus, whilst a belief in pure meritocracy within a privately owned commercial business may not pass the test, the tribunal were satisfied that the matter was weighty and substantial when applied to the nation’s police service. In essence, given the responsibility for supporting and interacting with the public in a multitude of ways, and against a background of well-publicised sensitivities and perceived failings regarding representation of minority groups within its forces, debate over how progression was managed was of suitably wide importance.

[127]Returning to Grainger, the tribunal therefore accepted that the claimant genuinely believed in pure meritocracy as regards progression, based on genuine experience and as vocalised from time to time. The belief was deeprooted and longstanding enough not to be a mere opinion. The belief related to a weighty and substantial aspect of human life and behaviour. It also attained a suitable level of cogency an seriousness – to repeat, there was serious ongoing debate over the question of addressing a lack of representation of protected characteristics such as gender and race within forces, particularly more senior ranks, and one side of that debate was aligned with the view that no adjustments should be made and that candidates should be judged – blindly if necessary - purely on their ability to meet the requirements of the role and given no recognition for other factors. And given the relatively low bar set by Forstater v CGD Europe

[2021] ICR 1

, it was clear that the belief deserved respect in modern society and did not conflict with the fundamental rights of others. It was clearly not shared by all, but it was not abhorrent.

[128]The fourth alleged protected belief was framed as ‘a lack of belief in positive action as a means of redressing discrimination and/or disadvantage experienced by minority groups’. The tribunal noted that this was different from the others in being framed as an absence of belief rather than the holding of one. As such it was distinct from holding a tangible belief that positive action did not work or should not be used. The tribunal took the term ‘positive action’ to mean lawful and proportionate steps aimed at redressing a disadvantage, removing a barrier or generally levelling the playing field for a person or persons with a protected characteristic. It would have to be compliant with the EqA and not tip over into positive discrimination, i.e. preferential treatment simply by virtue of possessing a protected characteristic.

[129]The parties took different stances on whether the Grainger criteria should be applied to an alleged lack of belief. The claimant argued that the EAT in Forstater had confirmed that they need not. The respondents’ position on that was that as Forstater ultimately did not deal with a claim based on lack of belief, the relevant passage of its judgment was obiter. They argued that, applying realism, at least some of the criteria had to be applied – for instance the claimant had to genuinely not hold the belief referred to and he should not apply it in his life. The tribunal accepted that this was broadly correct, in the sense that any evidence of the claimant holding a positive belief about the appropriateness or effectiveness of positive action (whether for or against it) would point towards the existence of a belief rather than the lack of one. That could be by what the claimant said himself in his evidence to the tribunal, or more circumstantial evidence about his past actions or words.

[130]Developing this point, the tribunal were mindful of the evidence which the respondents themselves referred to in their closing submissions. Those were the claimant’s ELP application, the Article and his evidence to the tribunal. In relation to the first of those, the tribunal revisited the ground it covered in relation to the third belief. This time, the evidence went against the claimant. What he had put in his application form were examples of positive action which he had applied and which he thought were the right thing to do. He went as far as to say ‘we still have huge amounts to do in this regard’, in reference to a menopausal colleague experiencing barriers to progression and shocking language from colleagues. Similarly, the Article recognises that diversity information should be collected and reviewed as part of the process, just not at the stage of provisional selection, and stated that chief officers had ‘a crucial responsibility for creating a diverse and inclusive organisational environment’, provided identity politics does not undermine the key concept of police neutrality. This again pointed to support of positive action in the sense of creating a fair environment in which all candidates can fairly be judged on their merits. It was in effect a re-statement of the third belief.

[131]The claimant did not fully engage with the concept of positive action within his witness statement. He did say that, ‘Not only do I not believe in DEI, Intersectionality and CRT but I hold to alternative and opposing philosophical beliefs.’ (emphasis added). He did not define ‘DEI’ but it was taken to mean ‘diversity, equity and inclusion’. CRT was defined as Critical Race Theory. Again, therefore, he expressed his position more as being definitively against something rather than not having any view at all.

[132]In conclusion, the tribunal found that the claimant did not have an absence of belief in positive action, either as regards the appropriateness of using it or its effectiveness. His own words (the Article) and actions (the ELP examples) showed that he was in favour of it when applied proportionately and in the right areas. He justifiably saw this as distinct from positive discrimination. He feared the latter was a real threat via identity politics, quota filling and tokenism. This was already embodied in the third protected belief.

[133]To recap therefore, the tribunal was satisfied that the first, second and third alleged beliefs were protected in law, but that the fourth had not been established on the evidence and was not. Manifestation of protected beliefs

[134]The tribunal next considered which of the established protected beliefs were manifested (i.e. expressed) in the Article.

[135]As confirmed above, the respondents accepted that the first belief was manifested in the Article. The tribunal agreed. For example, within the seventh paragraph the claimant says that ‘Crucially, [Chief Officers] are ultimately custodians of the concept of ‘operational independence’ and must stand up to and defend robustly any political interference in professional policing matters.’ The proposition is developed in the paragraphs which follow, with references to unfortunate examples of ‘intrusions’, lines being crossed and overt engagement in identity politics.

[136]The tribunal was similarly satisfied that the second belief was manifested in the Article. This was not surprising given how closely it related to the first belief, and much of the same wording in the Article conveyed that. The quote in the paragraph immediately above is one example, particularly by the words ‘must stand up and defend robustly’. This went further than merely indicating the claimant’s own view and asserted what he believed those with the relevant power simply had no choice but to do. Similar language is used in relation to diversity, where the claimant said that Chief Officers have ‘a crucial responsibility’ to create a diverse and inclusive environment, but that it ‘must be done while ensuring the divisive issue of identity politics does not pervade police organisations to the extent that they undermine the key policing concept of neutrality – or as was the oath when I joined the service, ‘without fear or favour’.’ This is the language of pragmatism and the tribunal saw that by it, and the Article as a whole, the claimant was emphasising the moral importance of protecting police neutrality.

[137]The third belief was also manifested in the Article. This tended to occur later in the piece as the claimant focussed more on what he perceived to be the failings, or at least issues left unaddressed, after revamping of the ELP process. The belief is expressed most clearly within the section headed ‘In their own image’ in which, as that title suggests, he sets out his thoughts about senior officers with influence over promotion decisions favouring candidates most like themselves. He expresses concern that diversity information could not merely be used for monitoring purposes, but assist in meeting quotas, and suggests that instead it should be excluded altogether until candidates are provisionally selected on their merits. He says that ‘Fairness, transparency and a sense of meritocracy surely must be at the heart of any effective selection process, particularly for those aspiring to the most senior levels of policing.’

[138]As the tribunal did not find that the fourth asserted belief was protected, it did not require to determine whether that alleged lack of belief was expressed in the Article. In any event, and as explained above, the tribunal’s interpretation of the Article was that it did not express a lack of belief in positive action as a means of redressing discrimination and/or disadvantage experiences by minority groups. Nothing in the Article would have reasonably led a reader to conclude that this was the claimant’s position, and if anything it positively expressed a belief in positive action being something to be avoided. To paraphrase, the claimant was not conveying that he didn’t know whether positive action was effective or worthwhile, but rather he was asserting that positive action was unfair, biased and liable to lead to the wrong candidates progressing.

[139]Again therefore to summarise, the tribunal found that each of the three protected beliefs was manifested in the Article. On that basis the tribunal then went on to review the individual legal complaints. Harassment – EqA section 26 – issue 6 of the list of issues

[140]Below the tribunal sets out its conclusions in relation to each of the allegations of harassment, listed as (i) to (xiv) within issue 6 in the list of issues. In relation to each of those issues it had to decide (a) whether the act complained of occurred, (b) if so whether it was unwanted conduct related to the protected characteristic relied upon, and (c) if so did it fall within section 26(1)(b), taking into account where relevant section 26(4). The tribunal found that each alleged act was or would have been unwanted from the claimant’s point of view if it occurred as described, and so that is recorded here for simplicity and brevity rather than repeated for every single complaint below.

[141]Issue (i) – the second respondent instigating the meeting on 27 July 2023 which was attended by the claimant, Ms Tuffin and Mr Thomas – this occurred but was not related to the claimant’s protected characteristic. The tribunal accepted the evidence of Ms Tuffin and Ms Thomas that the meeting was instigated broadly for two reasons – first to convey Ms Tuffin’s initial concerns, namely that the article contained inaccuracies which could be embarrassing to the Second Respondent and that the claimant appeared not to have discussed its existence and content with anyone, and secondly following from that to ask him for further details about the process of how the Article had come about. The tribunal also accepted that neither Ms Tuffin nor Ms Thomas took issue with the claimant’s three protected beliefs, each of which they either shared or at least recognised as tenable viewpoints held by a significant number of people within UK forces. They were not disturbed or antagonised by the claimant holding or expressing those views. This was their evidence under oath and corroborated by the contemporaneous meeting notes, and the tribunal found them to be credible. Their reasons for organising the meeting were separate. For completeness, the tribunal could not see how merely arranging the meeting itself could have met the requirements of section 26(1)(b). At the very least they were entitled to have a conversation with the claimant about the Article and the tribunal did not accept that the circumstances of the meeting fell within that statutory provision.

[142]Issue (ii) – the second respondent at the 27 July 2023 meeting, via Ms Tuffin, imposing a requirement to “prove trust could be regained” – this also happened. The reason for it was that Ms Tuffin felt the claimant had gone back on a promise to notify the Second Respondent of any articles he was involved with, and had not asked for the Article to be fact-checked for accuracy. She believed that inaccuracies in the Article had the potential to undermine the efforts which had been made to gain buy-in for the revised ELP programme among senior officers of police forces and more directly impacted on the claimant’s future interactions with those officers under the terms of the secondment. The tribunal accepted that Ms Tuffin considered the role the claimant had to fulfil to be particularly sensitive because by its nature he would be working closely as an outsider with the chief officers of underperforming forces. His judgment and credibility were of high importance and he would be working largely unsupervised. The reasons given for losing trust in the claimant were accepted. They were not related to the claimant’s protected characteristic, whether by way of holding the beliefs or expressing them in the Article.

[143]Issue (iii) – the first respondent, via Michael Furness, on 28 July 2023 sending an email to the second respondent, by virtue of sending it to Ms Tuffin, containing information which it knew or reasonably expected would be used to the claimant’s detriment – the wording of this legal issue is slightly ambiguous in light of the evidence. The tribunal accepted both that the email was sent and that at the time it was sent the first respondent would have known, or reasonably would have expected, that it would be used by the second respondent to the claimant’s detriment. This was because it was sent very shortly after CC Marsh had called CC D’Orsi to say that the second respondent was seriously considering ending the secondment because of the claimant’s perceived breach of trust. Realistically, CC D’Orsi would have realised that the sharing of the information, itself raising a concern over the claimant’s integrity, at that time could have influenced the decision adversely for the claimant. The tribunal considered whether she would have shared the information even had CC Marsh not made her aware of the breach of trust issue. Whilst that was possible, it was not more probable than not. There was no absolute need for the second respondent to be made aware, as the reflective practice was to be implemented by the first respondent and no active input from the second respondent was necessary. The decision as to why to share the information was taken by CC D’Orsi and she did not give evidence. The tribunal was however satisfied that the sending of the email could not have been an act of harassment because it was not related to the claimant’s protected characteristic. It was sent because it came to the attention of CC D’Orsi no more than a day or so before CC Marsh contacted her about a breach of trust, and she saw the RP issue as also relating to trust. There was no evidence that she or Mr Furness had read the Article before the decision was taken, given that Ms Etebar emailed it to Mr Furness after he had spoken to and emailed CC Marsh about the RP issue. Nor was there any evidence that CC D’Orsi or Mr Furness had become motivated against the claimant for any protected beliefs expressed in it, and as explained in the findings above and further conclusions below, the second respondent was not prompted to consider ending the secondment because of the holding or manifestation of those beliefs either.

[144]Issue (iv) – the second respondent refusing to delay the 15 August 2023 meeting to which the claimant was invited on 8 August 2023 – the tribunal found as fact that the meeting was only for the purpose of conveying the decision to end the secondment, taken around 31 July 2023. It was not to discuss whether the secondment would be ended, nor even to allow the claimant to make representations on the matter. The claimant indicated he would not attend the meeting. Ms Thomas therefore decided to dispense with the meeting and convey her decision in writing instead. The claimant was not deprived of any option he would have otherwise had to try and persuade the second respondent not to end the secondment. No aspect of that process was related to the claimant’s protected characteristic. They were an extension, and a conclusion, of the thought process which began with the loss of trust regarding how the Article had been published, supplemented by the disclosure of the RP referral.

[145]Issue (v) – the second respondent, on or around 10 August 2023, relying upon the information provided by the first respondent in its 28 July 2023 email (at (iii) above) – this is the counterpart to issue (iii) above. The tribunal found that the first respondent did not share the information for a reason relating to the claimant’s protected characteristic and nor was it used in a way which related to that status. It was taken in good faith as further evidence of the claimant damaging trust. Although he was not the second respondent’s employee, he was representing it in dealings with senior members of police forces and trust was still important.

[146]Issue (vi) – the second respondent terminating the claimant’s secondment on 15 August 2023 (of which he was notified in writing on 10 August 2023) – the secondment was ended because the second respondent reached the view that the claimant had irreparably damaged the trust between the parties. This was not because of his protected beliefs, but because of the other unrelated concerns that both Ms Tuffin and Ms Thomas had, which (to repeat) were in relation to how the Article had come about, its inaccuracies and their potential consequences, and because, as they understood it, he was being asked to undertake a process of personal reflection because he had exaggerated his achievements in an application to be admitted to the ELP.

[147]Issue (vii) – the first respondent, on or around 10 August 2023, failing to prevent the termination of the secondment (i.e. the act within issue (vi) above) – the claimant argued strongly that the first respondent could have done more to try and persuade the second respondent not to end the secondment, or to reconsider its decision after it was taken. Both respondents argued that the decision was exclusively within the second respondent’s power. This was the view taken by those individuals involved at the time. On the side of the second respondent, it had previously terminated secondments before their intended duration had been served in various circumstances, most commonly when funding was withdrawn. To do so was not unusual. The first respondent interpreted the agreement the same way. The only area of discussion of any note between them was about the duration of the notice period. Considering the framing of this issue strictly, it was simply impossible for the first respondent to prevent the termination of the secondment as long as the second respondent wished it to happen. Even widening its scope to allow review of the steps the first respondent took, or did not take, to persuade the second respondent to continue with the secondment, there was no trace of a connection between how the first respondent viewed the situation, and then responded to the second respondent, and the claimant’s protected characteristic.

[148]Issue (viii) – prior to the termination of the secondment, effective on 15 August 2023:a. Either or both of the respondents did not comply with Home Office Guidance on Police Officer Misconduct, Unsatisfactory Performance and Attendance Procedures 2012 (Annex D) – the tribunal concluded that neither respondent considered that Annex D had to be followed in the situation which occurred. Generally, the first respondent considered that those procedures and their supporting legislation covered home forces but not itself, which was governed by different legislation sourced from the Railways Acts. The second respondent was treating the situation as one outside of the Guidance and governed solely by the secondment agreement itself, consistent with previous occasions when secondments had to be terminated early. There was no conscious departure from it, and certainly not because of the claimant’s protected characteristic;

b. The second respondent did not conduct an initial assessment of the misconduct allegation – again, the evidence pointed to the fact that Ms Tuffin and Ms Thomas did not view the situation as a standard employee misconduct issue. This was their own view and it was supported by advice given by their Human Resources colleagues. The ending of a secondment was not seen as tantamount to dismissal and they understood that it could be achieved by a simpler process and would result in the claimant returning to his own force, not losing his job. There was no evidence of a conscious omission of any normally applicable step or process because of the claimant holding or manifesting his beliefs;

c. The Second Respondent did not notify the claimant of any disciplinary charge against him before the 27 July 2023 meeting – again, the framing of this issue suggests that the second respondent consciously omitted a process or step from an otherwise established or expected procedure. This is not how the evidence portrayed the situation. Ms Tuffin wished simply to convey her initial concerns about the Article and ask the claimant for some points of clarification in relation to it. She did not view that as a situation where a formal procedure – disciplinary or otherwise – had to be followed. The HR advice she received confirmed that. Any absence of advance notification of the purpose of the meeting was most likely explained by the short timescale she was operating within, having found out about the Article only the day before and wishing the meeting to be on the same day as the invitation, since Ms Thomas was on leave the next day and she herself was on leave the week after that. It was not influenced by the claimant’s protected beliefs;

d. The second respondent did not afford the claimant the opportunity to have representation in advance of the same meeting – for the same reasons as relate to (c) immediately above, this was not considered relevant to the exercise Ms Tuffin was undertaking;

e. The second respondent did not afford the claimant the opportunity to have an oral hearing or make his case by way of submissions – this again was explained by the same evidence as for (c) and (d) above;

f. The second respondent made an allegation that the Article contained ‘inaccuracies’ in an unparticularised and unsubstantiated way – the evidence, both by way of the notes of the meeting and from the witnesses, was that after Ms Tuffin raised one example of the Article being inaccurate early in the meeting the conversation took a different direction, ending up with the claimant apologising and offering to have it removed. Had she been challenged on her view that the Article was inaccurate then likely she would have explained this further, but it was not necessary to do so. All of this is entirely unrelated to the claimant’s protected characteristic. Ms Tuffin said the Article was inaccurate because she genuinely believed that it was, and furthermore because she felt the inaccuracies were of a type that could cause the second respondent to be negatively perceived by those reading the Article;

g. The second respondent failed to undertake an investigation – similarly, there was no suggestion in the evidence of the second respondent consciously avoiding using a process it would normally have followed at all, let alone for a reason connected to the claimant’s protected characteristic;

h. The second respondent did not take relevant considerations into account, namely

(a) the claimant’s apology and deletion of the Article,

(b) the Article not containing any criticism of it,

(d) the absence of any reputational impact caused by the Article – as regards (a), the evidence showed that the second respondent did take into account the claimant’s apology and deletion of the Article. Those were viewed by Ms Tuffin and Ms Thomas as initial conciliatory steps which could help salvage the trust which had been lost. The problem for the claimant was that shortly after his apology and offer to withdraw the Article, the details of the RP referral were shared with them and this was viewed as a final straw in relation to the issue of whether the claimant could be trusted to carry out his seconded role. In relation to (b), it is simplistic to say that the Article contained no criticism of the second respondent. Whilst no direct criticism is made, the ELP programme itself was criticised and, given the second respondent’s prominent investment in it and the vexed process leading to its introduction, the second respondent by clear implication was being held responsible for the perceived shortcomings discussed. This was one of the issues for Ms Tuffin when she first read the Article. Under (c), it is only true up to a point that the claimant wrote the Article as an academic and with freedom to do so, separate from his roles with the first and second respondent. One could not be entirely divorced from the other given that he held both his teaching position and his role as a serving officer at the same time. This was stated in the leader to each of the Policing Insight articles. Further, his seconded role involved him dealing directly with senior officers within various police forces across the UK. Ms Tuffin was concerned that any of those individuals could have read the Article and concluded that the claimant was critical of the body he was representing, had a low regard for senior officers or could not be trusted to be discreet. This concern was valid. Finally, for (d), whilst no reputational impact was detected that was beside the point. The Article may have had a negative impact in the short time it was available to read, but that would not come to light immediately. Also, the second respondent was entitled to think that this risk would be greater had it remained available to view for more than the period of around three days it was live on the Policing Insight website. There was no onus on the second respondent to prove it had sustained damage before it could take steps to protect its position. Taking a step back, regardless of the merits of the second respondent’s actions in relation to each of these matters in a general sense, the tribunal did not find any evidence to support the accusation that they were motivated by the holding or expression of the claimant’s protected beliefs. The motive of those involved was the separate concern of protecting the reputation of the second respondent against inaccurate, potentially confusing and ultimately embarrassing comments about one of its flagship initiatives;

i. The second respondent taking irrelevant factors into account, namely (a) the information provided by the first respondent in its 28 July 2023 email (as at paragraph 6(iii) above), and (b) the claimant’s ill health which it used as a reason to expedite the decision-making process – the claimant and the respondents disagreed on the question of whether the details of the RP process were relevant to the secondment. Ms Thomas believed them to be relevant because to her they were a further example of the claimant’s integrity being subject to question, the issue she was concerned with at the time. This was a tenable view, even if not the only one which she could reasonably have taken. The information was not irrelevant. Again the tribunal was mindful of the potentially delicate nature of the claimant’s interventions with underperforming forces and the need for him to represent the second respondent with credibility and good judgment. The tribunal did not find that the claimant’s ill health was used as a reason to expedite the decision-making process. On the evidence, Ms Thomas decided on around 31 July 2023 that she would terminate the secondment, and this decision was formalised some three days later. She wished to end the secondment as soon as possible and was guided by an HR colleague as to the timing of a meeting she planned to hold with the purpose of communicating the decision to the claimant face to face. He declined to attend on the date offered and so the decision was conveyed in writing. The fact that the claimant was ill played no part in the timing of the decision taking effect. She could have postponed the meeting until a later date by which the claimant was well enough to attend, but chose not to. This is not the same as expediting her decision based on the claimant’s illness. As with (h) above, the case for and against the actions taken by the second respondent could be debated in terms of general reasonableness, but ultimately its decisions were not influenced by the holding or manifesting of protected beliefs;

j. The second respondent retrospectively introducing, at the 27 July 2023 meeting, a ‘prior approval requirement’ before articles are published – the tribunal did not find on the evidence that this is what happened. Ms Tuffin stated that she understood the claimant had earlier agreed to let Ms Thomas know in advance about any articles he intended to write during the secondment. As explained in the findings of fact, the claimant himself did not understand that he had given an undertaking that broad. Regardless, all Ms Tuffin said in the meeting was that she was disappointed that the Article had been released without the claimant letting anyone within the second respondent know. Therefore, firstly she did not impose any requirement on the claimant at that time, and secondly the previous undertaking was understood to be to notify the second respondent about the existence of any article and not to seek its approval of the content of it;

k. The second respondent giving inadequate weight to the claimant’s Convention rights under Articles 9 and/or 10 of ECHR – the right to freedom of thought, conscience and religion and the right to freedom of expression are qualified rights. They must be balanced against the rights of others. As outlined above, the second respondent did not take issue with the claimant’s protected beliefs and nor did it seek to curtail his expression of them. From the notes of the very first meeting on 27 July 2023 this is clear. The steps which were taken did not therefore impinge on the claimant’s exercise of his Convention rights. The secondment was terminated for unconnected reasons.

[149]Issue (ix) – the first respondent failing to take adequate steps to source alternative employment from 15 August 2023 to 24 November 2023 (when the claimant resigned) – the tribunal was not persuaded that this argument was made out based on the evidence. The claimant was initially placed temporarily in a non-operational role until he was well enough to work, with the intention later becoming that at a posting panel meeting in November 2023 his position would be considered. This left Superintendent McEwan in his previous role for the time being, which the first respondent was entitled to do given that the claimant was medically unfit to work, and as technically he had vacated that role as a condition of the secondment. That arrangement was less disruptive than returning the claimant to his previous role, which he was not yet well enough to fulfil, and returning Superintendent McEwan to her previous role. Furthermore, the claimant indicated clearly to ACC Gregory in his email of 22 August 2023 that he did not wish there to be any discussions about his role until he was well enough to participate in them. This was also his position when Ms Etebar offered him the role of Programme Lead for the Optimising Policing Model via Superintendent Oram. His health did not recover before he tendered his resignation on 24 November 2023. At that point he was still certified as unfit to 31 December 2023, which period was later extended further. He was particularly disappointed not to be reinstated in his former role at the posting panel meeting of 10 November 2023, but the decision was merely deferred until his health permitted him to return. His former role was not permanently filled. Again that was sensible and proportionate. Therefore the first respondent did not fail to take adequate steps to find a role for the claimant, and nor was there any evidence that those involved were motivated by his protected beliefs.

[150]Issue (x) – Constructive dismissal pursuant to s39(2)(c) an (7) EqA which requires the tribunal to deal with the following sub-issues:(a) did either or both of the respondents commit an EqA contravention in terms of the unwanted conduct set out at paragraphs (i) to (ix) above,

(b) if so, does that amount to a repudiatory breach of the employment contract between the first respondent and the claimant,

(d) if so, is the claimant nevertheless precluded from relying upon that breach having previously affirmed it – this complaint falls at the first hurdle as the tribunal found, as above, that there was no contravention of EqA in terms of the allegations within sub-paragraphs (i) to (ix) above.

[151]Issue (xi) – the second respondent rejecting the claimant’s grievance by letter dated 22 November 2023 – no link between the claimant’s protected characteristic and the process of dealing with the grievance, its findings or its ultimate outcome could be detected from the evidence. The decision was reached by Ms Higgins. She had no previous knowledge or dealings with the claimant. Her evidence was not seriously challenged on the question of whether she was influenced by the existence or manifestation of the claimant’s protected beliefs. She maintained that she was not. The criticisms made of Ms Higgins were more to do with procedure but those did not go to the key question of whether section 26(1) EqA had been engaged. Given that the termination of the secondment was not by reason of the claimant’s protected beliefs it was not surprising that the written response to his concerns about that process was not harassment in connection with those beliefs.

[152]Issue (xii) – the first respondent rejecting the claimant’s grievance by report issued on 12 December 2023 – similarly, there was no connection between the protected characteristic and the actions taken by the first respondent. The tribunal concluded that the process generally was atypical because of the claimant’s allegations against senior officers within the first respondent. This led to the BTPA taking on responsibility to hear the grievance, in a situation for which there was not a ready-made procedure in place. Individual aspects of the process adopted could be debated, but the only relevant issue in the context of the claim is whether the claimant was treated adversely in a way which fell within section 26(1) of EqA. There was no evidence of that.

[153]Issue (xiii) – the first respondent denying the claimant a right to a grievance hearing and/or a grievance appeal hearing – the claimant was not denied a grievance hearing. He met twice with Mr Hawkins. Those meetings together fulfilled the purpose of a grievance hearing. It is correct that there was no grievance appeal hearing, but that was not for a reason related to his protected characteristic. It was simply a choice based on other factors such as the terms of the grievance necessitating the engagement of the BTPA and the nature of the appeal points raised, plus the fact that the claimant had by then resigned. The claimant provided his submissions in writing and they were considered. Whether it would have been more reasonable generally to offer the claimant a hearing is unconnected to the relevant question of whether any decision not to have a hearing was related to his protected characteristic and met the other requirements of section 26(1). The evidence did not support that.

[154]Issue (xiv) - the first respondent rejecting the claimant’s grievance appeal(a) in general and/or

(b) for the reasons it gave – the tribunal accepted the evidence of Mr Ind, who heard the appeal, in relation to why he reached his decision. Once more the overall approach he took, or individual decisions within it, could be criticised but there was no detailed process in place to follow and he used his best judgment. The decisions which the claimant challenged were not influenced by his protected beliefs and nor was Mr Ind’s review of those decisions. Direct discrimination – EqA section 13 – issues 7 to 9 of the list of issues

[155]The allegations of direct discrimination were said to be the same as those qualifying as harassment within issue 6, namely the matters (i) to (xiv) immediately above. The list of issues specified (i) to (xii) although the tribunal assumed the last two complaints within issue 6 were intended to be included and so considered those also for completeness.

[156]The tribunal’s conclusions as to what actually occurred are addressed in the section of the judgment immediately above, and so not repeated.

[157]The next issue was expressed as the question whether any treatment established as fact on the evidence was because of(a) the claimant’s protected beliefs or an unobjectionable manifestation of the same, or

(b) a manifestation of a protected belief to which objection might justifiably be taken. The first of those options would be potentially unlawful and the second lawful. The claimant argued that he did not need to identify a comparator post- Higgs and because the adverse treatment being alleged was a breach of his Convention rights. The point was not addressed by the respondents.

[158]The tribunal notes here that there is a third option – that any established treatment was in no material way related to the holding or manifestation of protected beliefs. Having considered all of the evidence this is the conclusion which the tribunal reached. The tribunal recognised that it had to ask itself what was the ‘reason why’ each respondent treated the claimant the way that it did, rather than consider what would have happened ‘but for’ the holding and expression of the claimant’s protected beliefs in the Article - Nagarajan v London Regional Transport

[1999] IRLR 572

. This involved consideration of what were the true motives for those who took the relevant decisions and steps.

[159]The tribunal analysed the evidence of the second respondent’s witnesses. Both Ms Tuffin and Ms Thomas said that, of the claimant’s beliefs which were found to have been protected, they did not take issue with them. They broadly agreed that police forces should remain free from political influence and that this was important to uphold. Ms Tuffin said it was part of the second respondent’s philosophy. They recognised that many officers across the various forces of the UK would think the same. They did not necessarily hold the view that each promotion or career progression decision should be based on pure merit but they respected that as one of a number of sustainable viewpoints, held by a substantial body of officers across the various forces of the UK. They recognised that there was a range of views in relation to a number of issues related to diversity within the police community. They respected healthy debate and the expression of views in good faith. Neither had any particular knowledge of the claimant’s views and beliefs outside of what was expressed in the Article. Their reasons for acting as they did are stated above, but in summary were that the claimant had undermined trust by not discussing with anyone in advance of the Article that it would be published, that as a consequence of that it contained inaccuracies, that it was critical of some senior officers in the context of the claimant’s role being to work constructively with such individuals in sensitive circumstances, and that as a result of those things the credibility of the second respondent and its revised leadership programme would be damaged. Those elements were separate from the claimant holding his protected beliefs and his expression of them in the Article. The tribunal recognises that the distinction is nuanced, but this is the conclusion which most faithfully follows the evidence. Although the expression of protected beliefs in the Article was part of the broad context it was not among the factors which actually led to the decision to end the secondment.

[160]As such, to the extent that the claimant was able to establish primary facts from which an inference of direct discrimination could be drawn, thus shifting the onus of proof onto the second respondent per Igen v Wong

[2005] IRLR 258

, the latter was able to prove that any such adverse treatment did not occur for a discriminatory reason. It did so by way of the witness evidence of Ms Tuffin and Ms Thomas, supported by documents such as the agreed notes of the 27 July 2023 meetings.

[161]The tribunal similarly considered the decisions and actions of those within the first respondent who had a part to play. Their involvement was less and, as explained in the findings above, confined to the decision to share the reflective practice details, agreement to the secondment ending in the way the second respondent proposed and the handling of the claimant’s absence and the question of his role within the organisation once he returned. Those were even more remote from the claimant’s protected beliefs.

[162]The tribunal was mindful that the claimant’s holding or expression of protected beliefs need not have been the sole or even the main cause of any adverse treatment in order for a given complaint to be discriminatory. There merely has to be ‘a significant influence on the outcome’ as confirmed by the Court of Appeal in Owen & Briggs v James

[1982] IRLR 502

. As set out immediately above the tribunal did not accept that there was any connection at all, but if there was then it would have been too tenuous to cross that threshold.

[163]It follows that there was no need to consider whether a comparator was required, or who that would be if so. The claimant was not unfavourably treated by reason of his protected characteristic at all, and there was no evidence – or submission – that he was less favourably treated than any other given person, whether real or hypothetical, on the basis of it.

[164]Nor was there a need to conduct a proportionality assessment in order to consider whether the respondents had reacted to objectionable or unobjectionable manifestation of the claimant’s beliefs as per Bank Mellat v HM Treasury (No 2)

[2013] UKSC 39

and Higgs. Victimisation – EqA section 27 – issues 13 and 14 of the list of issues Were there protected acts?

[165]Three protected acts are alleged, as follows:a. The writing and publication of the Article;

b. The raising of a grievance against the second respondent on 22 August 2023, and

c. The raising of a grievance against the first respondent on 18 September 2023.

[166]Both respondents conceded that each grievance was a protected act but not the Article. The claimant relied also on section 27(1)(b), namely detriment on the basis that either respondent believed that the claimant had done, or would do, a protected act.

[167]The tribunal considered whether and how the Article could fall within the scope of section 27(2) of EqA. The first two examples – bringing proceedings and giving evidence or information in connection with proceedings – could clearly be ruled out. It would therefore have to amount to ‘doing any other thing for the purposes of or in connection of this Act’ or ‘making an allegation (whether or not express) that [either respondent] or another person has contravened this Act’.

[168]The tribunal did not find that the claimant had done anything ‘for the purposes of or in connection with’ EqA in writing the Article. It interpreted that statutory wording to mean something more than merely referring to the Act (which in any event the Article did not) or to situations or issues with which the Act might be concerned. The words ‘for the purposes of’ and ‘in connection with’ connoted something being done more directly in furtherance of EqA or its principles. The second respondent in submissions suggested that a potential example would be a worker making a report to their employer about an act of discrimination they had witnessed against someone other than themselves. The tribunal agreed that this is more the type of situation intended to be covered. In the context of the Article where the claimant was speaking more generally and to a wider audience about the risk of tipping over from positive action into positive discrimination, his words were not focussed or specific enough to meet the test.

[169]Nor did the tribunal find that the claimant had made an allegation, express or otherwise, that a person had contravened EqA. Again the text of the Article was not that specific. It spoke of risk of subjectivity and potential unfairness of the new ELP programme but that was forward-looking and did not refer clearly to any instances of discrimination which had already happened, as the statutory wording requires.

[170]The tribunal therefore did not accept that the Article was a protected act. It turned to consider the claimant’s two grievances. The respondents did not contest that these were protected acts, but the tribunal required to reach its own conclusion.

[171]The tribunal agreed that the grievance against the second respondent qualified, by virtue of an explicit allegation of disability discrimination in contravention of EqA. The claimant complained [515-516] that the termination of the secondment during his illness-related absence was a discriminatory act and that his mental health condition qualified as a disability under EqA, specifically referenced. The grievance notably did not refer to a breach of EqA in relation to the claimant’s protected beliefs. The closest it came was to allege breach of his Convention right to freedom of speech, but that is different. Free speech does not necessarily relate to expression of religious and other philosophical beliefs. It can do, but it covers more. He did not say that his protected beliefs were impinged upon. The context of the complaint is described in terms of whether he should have sought advance permission to publish any articles or submit them to fact-checking. Had he referenced Article 9 – the right to freedom of thought, belief and religion - in addition then possibly the grievance would have been a protected act, but he did not.

[172]The grievance made to the first respondent did not qualify as a protected act. Like the grievance to the second respondent, it contained detailed allegations of breach of certain Convention rights, procedural irregularities, breach of natural justice and excessively harsh decisions. Unlike that grievance, it omits any explicit complaint of disability discrimination and does not refer to EqA. It does not make any other recognisable reference to any person having contravened EqA. Nor did it fall within section 27(2) in any other way.

[173]For completeness, although not explicitly required in the list of issues, the tribunal considered the claimant’s addendum to his grievance to the first respondent, issued by email on 10 November 2023. This similarly did not qualify. Its subject matter was restricted to the RP disclosure. He alleged that he believed he had been punished for exercising his freedom of speech, but as explained above that was a reference to a particular Convention right and not any protected characteristic under EqA.

[174]To conclude therefore, only the claimant’s grievance to the second respondent qualified as a protected act, by virtue of containing an explicit reference to an alleged completed act of disability discrimination. Was there a consequent detriment?

[175]The list of detriments alleged to have occurred by virtue of protected acts was the same as the alleged acts of harassment.

[176]The tribunal has outlined above which of those alleged things happened. To the extent that they did, the tribunal did not find that the reason, wholly or partially, was because of the claimant’s protected act. As a matter of simple chronology, no event pre-dating 22 August 2023, the date of submission of the grievance to the second respondent, could have been because of it. This included complaints (i) to (viii) within issue 6 of the list of issues. Issue (ix) related to the first respondent’s actions or omissions up to 24 November 2023 as regards sourcing alternative employment for the claimant, which was found to have been adequate and proportionate. It was not detrimental and nothing was done or not done because of the relevant wording of the grievance to the second respondent. The allegations within issue (x) were not proven, and in any event the events again almost entirely predate the grievance. Nor were any decisions taken about the response to each original grievance, or whether or how any appeal against its initial outcome was dealt with, discernibly connected to the claimant’s allegation of breach of EqA in the grievance. This ruled out issues (xi) to (xiv).

[177]For completeness here the tribunal records that had either grievance qualified as a protected act by alleging a breach of EqA in relation to the claimant’s protected beliefs – in other words that reference to infringement of the listed Convention rights was enough to establish such a finding – then the tribunal was satisfied that none of the allegedly detrimental acts which followed were because he had raised such a breach. The evidence did not support a connection, in the same way as detailed in the paragraph immediately above. In short, there was evidence to show positively that anything which did happen was for a different reason.

[178]Again for the sake of completeness and clarity, the tribunal records that it did not conclude that either respondent anticipated that the claimant would undertake a protected act as provided for in section 27(1)(b) EqA, whether that was the allegation of disability discrimination which he did make, or any other. There was no such evidence in the documents, and nor was any elicited from any witness or proposed in closing submissions. His case on the evidence was based on the response to what he did do and not what he might have done.

[179]No complaint of victimisation therefore succeeded on the evidence heard. Detriment by reason of protected disclosure(s) – ERA section 47B(1) ERA – issue 15 of the list of issues Were there protected disclosures?

[180]Police officers are afforded protection given to workers under the Employment Rights Act 1996 (‘ERA’) as a result of making protected disclosures – namely in relation to detriments and dismissal – by virtue of section 43KA ERA.

[181]The claimant relied on two potential protected disclosures:a. The grievance against the second respondent dated 22 August 2023; and

b. The grievance against the first respondent dates 18 September 2023.

[182]Both respondents accepted that each grievance contained one or more protected disclosure.

[183]An alleged disclosure must first be a ‘qualifying disclosure’ in its nature. This requires five things per the EAT judgment in Williams v Brown

UKEAT/0044/19

–(i) a disclosure of information,

(ii) the worker’s belief that the disclosure is in the public interest,

(iii) such belief being reasonably held,

(iv) such belief being that one of the scenarios in sub-paragraphs (a) to (f) of section 43B(1) of ERA exists, and

(v) that belief also being reasonably held.

[184]If a disclosure is a qualifying disclosure in this way it will become protected if it is made to an appropriate person as provided for in sections 43C to 43H, which will depend on its circumstances.

[185]The tribunal also noted that the making of a protected disclosure does not need to be the only cause of a detriment for a complaint to succeed, or even the main cause if there is more than one. It need only be material.

[186]The claimant did not say in his particulars of claim or closing submissions which aspect(s) of section 43B(1) was or were engaged. The allegations made in each grievance clearly convey one or more breaches of legal obligations, such as Convention rights, natural justice, procedures contained in relevant legislation and, in the case of the grievance to the second respondent, the right not to be discriminated against on the basis of disability. The tribunal was satisfied that each grievance contained information about an alleged breach of legal obligations rather than a less specific generalised grievance, and that the claimant genuinely and reasonably believed that, had they occurred, it was in the public interest to complain about them. In other words, he genuinely felt that his right to freedom of expression was being curtailed and that relevant rules of procedure and general fairness were not being applied, and that this was of wider significance than just to himself if so. This dealt with the first four of the five requirements of Williams.

[187]The tribunal considered the question of whether the fifth requirement was met to be a more balanced issue. It ultimately reached the view that the claimant’s belief in there having been breaches of legal obligations was reasonable. It was mindful of the guidance provided in Babula v Waltham Forest College

[2007] IRLR 346

, to the effect that a belief in a section 43B(1) scenario can be reasonable even if there is a lack of conclusive evidence, or if the scenario in question is later deemed (for example by a tribunal) not to have occurred. Therefore, whether or not the second respondent did infringe his Convention rights or discriminate against him on the basis of disability, or whether either respondent failed to apply relevant statutory rules, guidance or general principles of fairness, were not matters which the tribunal had to definitively rule on but it was still able to conclude that it was reasonable for the claimant to believe at the time of raising his grievances, with the knowledge that he had, that those things took place.

[188]As such each grievance contained qualifying disclosures falling within subparagraph (b) of section 43B(1). The tribunal did not see that any other prescribed scenario within that section applied.

[189]The question of whether the claimant’s qualifying disclosures were protected is more straightforward. The grievance against the second respondent was to a ‘responsible person’ under section 43C(1)(b), being the party who carried out the acts complained of. The grievance against the first respondent was made to his employer. Both grievances therefore contained protected disclosures. Were there detriments on the grounds of making protected disclosures?

[190]The claimant’s case was that each alleged act of harassment occurring after the raising of each grievance was believed to also qualify as a detriment on the grounds of the protected disclosures made in that grievance.

[191]Consequently, the detriments claimed to have followed from the grievances against both respondents were issues 6(ix) to (xiv).

[192]The substance of those complaints has been dealt with above in relation to the harassment complaint. Complaint (ix) regarding the first respondent’s steps to find the claimant alternative employment was unfounded in fact. Similarly complaint (x) of discriminatory constructive dismissal was not made out. The tribunal considered whether each respondent’s handling of its respective grievance, or any matters relating to a subsequent appeal, could be linked to the disclosures made in either grievance. There was no such connection however. Clearly those dealing with the process were aware of the disclosures, whether they considered them to be protected disclosures or not, but the tribunal could not see a basis for finding that they were improperly influenced. The test of whether a detriment was ‘on the ground of’ making a protected disclosure is not a ‘but for’ test, and therefore it is not enough that the grievances contained protected disclosures and that they were subsequently rejected. Any disclosure must materially influence the treatment of the whistleblower, per NHS Manchester v Fecitt and others

[2012] IRLR 64

[193]Both Mr Hawkins and Mr Ind for the first respondent, and Ms Higgins and Ms Blyth for the second respondent, squarely addressed the claimant’s complaints with independent decision-making power and in good faith. However much the claimant may be inclined to criticise the precise procedural course each individual adopted, including such matters as whether there was a hearing, whether the investigation was undertaken by another person, and whether the outcome was communicated by correspondence, they were not influenced by the making of the disclosures.

[194]Thus, although the claimant made qualifying disclosures which were protected in each grievance, on the evidence he did not suffer any detriment on the grounds that they were made.

Conclusions

[195]On final reflection it was clear to the tribunal that from the very first interaction between the second respondent and the claimant in relation to the Article, by way of the meetings on 27 July 2023, those parties viewed what was problematic about the Article differently. The claimant immediately saw a challenge to his right to freedom of speech and the second respondent saw something which was inaccurate, professionally embarrassing to it and potentially compromising of the claimant’s sensitive role. From then on and to the conclusion of this claim those opposing views continued to be held.

[196]Although the claimant established some necessary elements of his claim, such as the possessing and expression of protected beliefs and the making of protected acts or disclosures, he was unable to demonstrate that he was treated in any unlawful way as a consequence, and therefore his claim must be dismissed.

[197]Consequent to the above there was no requirement to deal with issues 16 and 17 of the list of issues which were concerned with how questions of remedy should be approached.