Mr B Keegan and Ms A McKechnie v The Board of Management of South Lanarkshire College: 4103044/2023 and 4103481/2023
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4103044/2023, 4103481/2023
Between
Mr B KeeganClaimantThe Board of Management of South LanarkshireRespondent
Before
Employment Judge L WisemanMr R Byrom (instructed by Solicitor) for claimantMr M Briggs (instructed by Advocate) for claimantDate 4 March 2025
JUDGMENT
The judgment of the tribunal is:(1) Ms A McKechnie (a) to dismiss the claim of automatically unfair dismissal in terms of section 103A Employment Rights Act; (b) to dismiss the claim of ordinary unfair dismissal in terms of section 98 Employment Rights Act and (c) to dismiss the claim of discrimination because of the protected characteristic of sex in terms of section 13 Equality Act; and(2) Mr B Keegan (a) to dismiss the claim of being subjected to detriment on the ground of making a protected disclosure in terms of section 47B Employment Rights Act; (b) to dismiss the claim of automatically unfair dismissal in terms of section 103A Employment Rights Act and (c) to find the complaint of being subjected to detriment was, in part (alleged detrimental act point 3.1(a)) presented late and the tribunal has no jurisdiction to determine that matter.
REASONS
[1]The claimant (Mr Keegan) presented a claim to the Employment Tribunal on 25 May 2023 alleging he had made protected disclosures and had been subjected to detriment and dismissal because of having done so.[2]The claimant (Ms McKechnie) presented a claim to the Employment Tribunal on 23 June 2023 alleging she had been unfairly dismissed; automatically unfairly dismissed because of having made protected disclosures and discrimination because of the protected characteristic of sex.[3]The cases have been the subject of case management resulting in further particulars of the claims being produced and a decision being taken to hear the claims together because they arise out of the same set of circumstances and the majority of witnesses for the respondent would have been common to both cases.[4]The claims arose out of a situation whereby there was a breakdown in the relationship between the claimants and the Chair of the Board, Mr Andrew Kerr, and the Board. Ms McKechnie, Principal of the respondent College, believed Mr Kerr was a “rogue Chair” and that he plotted to remove her from post by soliciting complaints and having her suspended. The respondent’s position was that Mr Kerr had been in receipt of complaints regarding Ms McKechnie and had been hindered by Ms McKechnie and Mr Keegan (who was the Clerk to the Board), in trying to take those complaints to the Board and have them investigated. Ultimately relationships broke down and Ms McKechnie and Mr Keegan were dismissed for reasons of gross misconduct following an independent investigation, and Mr Kerr stood down from his role as Chair of the Board.[5]The tribunal heard evidence from the following witnesses: Mr Brian Baverstock, Governance Advisor to the Board from October 2021; Mr Ronald Smith, Chair of New College Lanarkshire and the Regional Strategic Board and a member of the Board of the respondent; Mr Paul Hutchinson, member of the respondent’s Board and Chair of the Board from November 2021 to May 2024; Mr Andrew Kerr, Chair of the respondent’s Board from May 2018 until November 2021; Ms Elizabeth McCormick, Management Consultant who carried out the investigation regarding the claimants; Ms Joanne Bowerman, HR Consultant, who carried out the investigation regarding Mr Kerr; Ms Aileen McKechnie, claimant; Mr Gary McIntosh, Head of HR with the respondent; Mr Brian Keegan, claimant and Mr Steven McCrossan, Area Officer with the Educational Institute of Scotland (EIS).[6]The tribunal was also referred to eight jointly produced folders of documents. Mr Byrom, in addition to this, produced a small number of additional documents. Mr Briggs also produced two folders of additional documents, but these were not referred to during the hearing.[7]The tribunal, on the basis of the evidence before it, made the following material findings of fact. (Material findings of fact are those that are relevant to the legal issues this tribunal has to determine. The tribunal recognised that many of the matters covered in evidence were of great importance to the parties personally – for example, demonstrating that something said, or an allegation made, was true/not true. However, these matters may not be included in the findings, and the tribunal may not make any decision regarding the rights/wrongs of any particular action or allegation unless it is, or forms part of, the facts necessary to determine one of the legal issues before the tribunal. We feel it necessary to say this because a great deal of the evidence the tribunal heard was not necessary to determine the legal issues in this case.) Findings of fact The Respondent
Findings of fact
[8]South Lanarkshire College is a further education establishment (and charity) based in East Kilbride. The College is part of a regional structure for South Lanarkshire, together with New College Lanarkshire.[9]New College Lanarkshire (which is, by far, the larger college) is the designated Regional College and Regional Strategic Body (RSB). The RSB is responsible for distributing funds to both Colleges and oversees governance. Mr Ronald Smith was Chair of the RSB and New College Lanarkshire from 2019. Professor Christopher Moore, was Principal of New College Lanarkshire and Chief Executive of the RSB.[10]South Lanarkshire College is governed by a Board of Management, which has responsibility for the overall management of the College.[11]The Constitution and Articles of Government of the respondent was produced at page 412 and sets out the Board’s policy and practice on those issues which it has powers to determine and delegate. In Annexe 3, entitled Delegation Scheme, it was stated that “It is a rule of law that a delegate cannot delegate and so only the committee or the persons or the holders of posts specifically named in this scheme may exercise the function delegated to them. They may not of their own volition delegate the exercise of a function to another…”[12]The Scheme of Delegation was produced at page 452. The Board had power to delegate the performance of any of their functions to their Chair, to any Committee appointed by the Board or to any member of staff. In the section entitled “Authority Reserved to the Board” it was stated that “..the Board reserves making decisions on the following matters to itself: … 1.9 “appointment and removal of the Principal; 1.10 appointment and removal of the Board Secretary..”[13]In the section entitled "Delegation to Chair of the Board” it was stated that the Chair had delegated authority to “3.1 exercise judgment in the event of a need for an urgent decision during the period between Board meetings such that an extraordinary Board meeting is called in the case of material decisions” and “3.8 to initiate action further to a decision of the Board to take disciplinary action against, or suspend, the Principal or Board Secretary”.[14]The Clerk, or Secretary, to the Board is responsible for supporting the Board, and in particular the Chair of the Board, and to ensure the Board understands the correct advice and guidelines in relation to good governance. It is important for the Clerk to be independent of the Board and to provide advice that is in the Board’s interests.[15]The Code of Good Governance for Scotland’s Colleges was produced at pages 384 (2016 version) and page 398 (2022 version). The Code of Good Governance codified the principles of good governance for learners and learning and promoted accountability and continuous improvement in how colleges and regional strategic bodies are governed.[16]The Board of Management of the respondent was chaired by Mr Andrew Kerr; the Vice Chair was Mr Paul Hutchinson and there were 14 other members of the Board including a Senior Independent Member, Ms Patricia Donnelly and student and staff representatives.[17]The respondent’s Disciplinary Procedure was produced at page 320. The procedure, at paragraph 1.4 set out the stages of the formal disciplinary procedure, and provided for the decision to suspend a member of staff to be taken by the Head of HR. The procedure also set out a number of exceptions, one of which was for the Principal. It was stated that “any investigation will be undertaken by an individual nominated by the Chairperson of the Board of Management. This individual will be from outwith the College and will be of a comparable seniority to the senior management team. An appropriate person would be a senior member of staff from another College.”[18]The section went on to say that “Any disciplinary hearing will be held by the Board of Management excluding the chairs of the sub-committees and any staff or student members. This group will nominate a Chair for the hearing. Appeals will be heard by the chairs of the sub-committees of the Board of Management.”[19]The Disciplinary Procedure was not aligned with the College’s governing documents and there was a conflict in relation to the power to suspend the Principal and the format of the disciplinary and appeal hearings in circumstances where dismissal of the Principal and Clerk to the Board is a Board decision and cannot be delegated.[20]The respondent’s Grievance Procedure was produced at page 330; the Whistleblowing policy at page 334 and the Dignity at Work policy at page 344. The appointment of Ms McKechnie[21]Ms McKechnie was appointed to the role of Principal in March 2020. Mr Kerr, Mr Hutchinson, and Mr Smith (all of whom had been on the interview panel with two others) described the claimant as a “first class” candidate and they were very pleased to have secured someone of her calibre for the post.[22]Ms McKechnie had previously been employed for many years with the Scottish Government, most recently as the Director of Advanced Learning and Science. She had been the most senior government officer with responsibility for learning and funding. She had also led the project to refresh the Code of Good Governance in 2015 and was experienced in governance, risk management and policies and procedures. The appointment of Mr Keegan[23]Mr Keegan was appointed to the role of Interim Board Secretary on 15 March 2021. This was an interim appointment to cover for the post-holder Ms Angela Martin, who was absent on sick leave. Mr Keegan’s appointment was initially for a period of three months, until 14 June 2021, but was extended.[24]Mr Keegan has extensive experience in further education and governance. The Azets investigation/report[25]Ms McKechnie was aware from June 2020 that a number of complaints had been received regarding the Construction faculty at the College. The complaints suggested “homers” had been done and customers were unhappy with the work. Ms McKechnie passed these complaints to Mr James Martin who, at that time, was Associate Principal of the Construction faculty.[26]In mid-September 2020 further complaints were made regarding Mr Martin and other senior staff in the Construction faculty.[27]Ms McKechnie emailed Mr Kerr, Chair of the Board, on the 13 November 2020 (page 2360) referring to having spoken “several times recently” about the complaints and allegations, which were escalating and had resulted in trade union involvement and threats of engagement with the Police. Ms McKechnie confirmed she had alerted the Finance Director and asked him to check spend against particular suppliers, coding of invoices and comparison with spend in previous years. Ms McKechnie concluded by stating she considered there may be benefit in asking the internal auditors to conduct an investigation.[28]The Chairs Committee (a committee comprising the Chair of the Board and the Chairs of the other committees) was alerted to the situation on 26 November 2020 and agreed to proceed in accordance with the relevant policies.[29]The Directors of Finance and IT did not report back until January 2021, and their reports were inconclusive.[30]Ms McKechnie discussed the matter with the internal auditors and met with the forensic accounts team of Azets on 28 January 2021, and updated Mr Kerr and Ms Glen (Chair of the Audit committee) regarding this on 1 February 2021 (page 2606).[31]Mr Kerr emailed Ms McKechnie on 1 February 2021, following receipt of her update (page 2608). Mr Kerr expressed concern that the investigation of certain allegations to date had concluded in an outcome of the allegation being unfounded and he wanted to be clear what the “various allegations” referred to in Ms McKechnie’s email were and what issues had been discussed with Azets for the scope of the audit. He concluded his email by stating that he did not want to potentially undermine confidence in the college with external parties and would welcome a discussion on the matter.[32]Mr Kerr’s concern was rooted in the fact that he had, on several occasions, been alerted by Ms McKechnie to an allegation relating to fraud, only to be told shortly thereafter that this was unfounded or had been resolved. Further, there was reference by the complainants to “video evidence” but this had not been disclosed.[33]Mr Kerr and Ms Glen subsequently approved the internal forensic investigation by Azets.[34]Ms McKechnie unreasonably interpreted Mr Kerr’s email (page 2608) as him being resistant to an investigation being carried out.[35]The Azets investigation into allegations concerning the Construction faculty commenced on 9 March 2021.[36]The Azets investigation concluded on 19 May 2021 and their Report was issued on 28 May 2021 (page 2787). The Report was considered by the Board on that date. The report concluded the respondent’s procedures and processes were lacking, but there was no evidence to substantiate the other serious allegations. The initial complaints against Ms McKechnie[37]Mr Kerr, Chair of the Board, received complaints from five individuals in the period between Autumn 2020 and Spring 2021.[38]Ms Angela Martin was a long-serving employee with 25 years’ service with the college prior to the arrival of Ms McKechnie. Ms Martin held the dual role of Clerk to the Board and PA to the Principal. Ms Martin commenced a period of sickness absence on 8 June 2020.[39]Ms Martin telephoned Mr Kerr in September 2020 to inform him she felt harassed by the Keeping In Touch calls during her absence and her GP had advised the calls should stop. Ms Martin asked Mr Kerr to contact Ms McKechnie and HR on her behalf to ask for the calls to stop.[40]Mr Kerr duly contacted Ms McKechnie to advise he had received this call from Ms Martin. Mr Kerr was surprised at Ms McKechnie’s response when she advised him that it was none of his business (because it was an operational matter) and that, in accordance with the policy, the keeping in touch calls would continue.[41]Ms Martin submitted a grievance against Ms McKechnie on 6 November 2020 (page 667). The grievance concerned the management style and behaviours of Ms McKechnie and referred to Ms Martin’s belief that her role and position in the college had been diminished by the behaviours of Ms McKechnie; that the use of silence and veiled criticisms was detrimental to her wellbeing and her ability to continue to carry out her role; that no care or wellbeing support was in place to acknowledge and assist with the level of additional work she was being asked to carry out; that there was a clear intent to change her role and that the management of her absence had been unacceptable.[42]Mr Kerr spoke to Mr Chris McDowall, who was a member of the Board, Chair of the HR committee and who is also a solicitor/partner in Anderson Strathern, for advice about what he should do.[43]Mr Kerr informed Ms McKechnie of the fact a grievance had been raised, and that he would need to seek governance advice. Mr Kerr did not provide Ms McKechnie with a copy of the grievance because Ms Martin had requested the grievance should not be shared with any member of the College Leadership team. Ms McKechnie would not accept this and pursued Mr Kerr for a copy of the grievance. The correspondence regarding this matter carried on well after the grievance had been withdrawn.[44]The grievance ultimately did not proceed because it was withdrawn on 17 November 2020 (page 2538).[45]Ms Martin subsequently contacted Mr Kerr again on 4 December 2020 asking to meet with him, Mr Hutchinson and Mr McDowall (page 2563). Mr Kerr responded to enquire about the purpose of the meeting and Ms Martin responded to say that on reflection and advice from her GP she did not wish to proceed with her request for a meeting at this time.[46]Mr Kerr subsequently emailed Ms Martin on 24 April 2021 (page 2525) to update her that he now had legal advice supporting him with what she and others had reported and that the lawyer wished to review the information he held. Mr Kerr referred to the grievance which had been withdrawn and advised that if Ms Martin wished him to share it, she should resend it. Ms Martin did subsequently resubmit her original grievance (page 2526).[47]Mr James Martin, (husband of Ms Angela Martin) was a long serving employee of the College with 34 years’ service. He was Associate Principal of the Construction Faculty. Mr Martin gave notice of his resignation in December 2020, effective on 17 January 2021. Mr Martin emailed a letter of resignation to Ms McKechnie, but he also sent a separate letter of resignation to the Head of HR, and one to Mr Kerr (page 686) in which he concluded by stating it had never been his intention to leave the College at this stage of his career but he found the current leadership within the College difficult to work with. He described the culture of the College as “moving quickly from a people centred college to one of an instructional, demand led, policy and procedure driven institution”. He ended by saying he would welcome a conversation with Mr Kerr to discuss this in more detail.[48]Mr Martin followed this up with a letter to the Chair (Mr Kerr), Vice Chair (Mr Hutchinson) and Chair of the HR Committee (Mr Chris McDowall) on 19 February 2021 (page 673) in which he formalised his complaint and explained in more detail the issues of concern.[49]Ms Alison Chambers wrote to the Principal by letter of 20 July 2021 (page 659) to resign from her position as Associate Principal for the Faculty of Business. Ms Chambers also wrote at length to Mr Kerr (page 660) and the Head of HR, Mr McIntosh (page 665). Ms Chambers, in her letter to Mr Kerr, referred to the appointment of Ms McKechnie and stated “her methods have impacted negatively on my mental health, destroyed my confidence in being a teacher for the Faculty, undermined my self-esteem and made me feel that I was no longer a valued or respected member of the senior leadership team. I cannot contemplate returning to what I felt was a toxic environment…” In the letter to Mr McIntosh, Ms Chambers referred to the period of sickness absence as giving her time to reflect, and that she could not return to an organisation that had caused her to be so unwell under the current leadership.[50]Ms McKechnie saw Ms Chambers’ letter to Mr McIntosh at the time it was sent.[51]Mr Hutchinson also saw Ms Chambers’ letter in July 2021 and he considered it’s content to be “alarming” and he questioned the claimant’s suitability for the role of Principal.[52]Mr Kerr had telephone conversations with Ms Martin, Mr Martin and Ms Chambers and he made a note of those conversations, which he sent to and agreed with them. The notes were produced at pages 642, 646 and 649 respectively and were undated, except for Ms Chambers’ note which was dated 25 February 2021.[53]Mr Kerr also had conversations with two other complainants and made a note of each of those conversations. The note of the conversation with Ms Lisa Beresford was produced at page 652 and with Ms Cross at page 656.[54]Mr Kerr noted that each of the complainers (with the exception of Ms Cross) had lengthy service and each made the same type of complaint regarding the conduct of Ms McKechnie and the impact this had had on them.[55]Mr Kerr was unsure how to take the matter forward, particularly in light of his experience with Ms McKechnie regarding Ms Martin’s grievance, and so he decided to approach the Scottish Funding Council (SFC) for advice regarding the complaints and how to address them and also regarding his own relationship with Ms McKechnie which had become difficult. The Chief Executive of the SFC, Ms Karen Watt, referred Mr Kerr to Mr Smith, Chair of the RSB. Mr Smith advised Mr Kerr to seek legal advice to obtain a process to follow to resolve the matter. Mr Kerr did not consider he could do that without support from the College, and so Mr Smith, having spoken to the SFC, and agreed funding by them, agreed to do this.[56]Mr Kerr was provided with legal advice (page 2782) to the effect the complaints had to be dealt with and that an independent investigation should be carried out. Mr Smith obtained the names of two people whom Mr Kerr could contact regarding an independent investigation. The legal advice also confirmed that if the complaints raised issues of coercive behaviour then suspension pending the investigation could be appropriate. The advice referred to the Disciplinary Policy and noted the decision to suspend must be taken by the Head of HR.[57]Mr Kerr sought advice from the SFC, support from the RSB and legal advice because he needed to understand how to deal with the complaints. Mr Kerr wanted to achieve a position where the complaints were taken to the Board so that the Board could decide how best to proceed. Mr Kerr did not want personally to make the decisions, even if he had authority to do so. He believed fundamentally that this was a matter for the Board.[58]Mr Kerr, having obtained legal advice, contacted Mr McIntosh, Head of HR, on 19 May 2021 to alert him to the fact some complaints/allegations had been made against Ms McKechnie and to seek his advice. Mr Kerr requested, and was provided with, copies of Ms McKechnie’s contract of employment and the relevant policies and procedures. Mr Kerr formed the impression Mr McIntosh was aware there was “an issue” regarding Ms McKechnie and that if called upon to do so, he would ask Ms McKechnie to step aside to allow an investigation to take place.[59]Mr Kerr contacted Mr McIntosh, Head of HR, again on 11 June 2021 regarding the complaints and he provided a copy of the notes made of his telephone calls with the five individuals. Mr Kerr, in his email of 11 June 2021 to Mr McIntosh (page 2832) asked for the identity of the individuals to remain confidential, and he set out some of the comments made by the complainants regarding the impact of Ms McKechnie’s behaviour on them. Mr Kerr noted that before any disciplinary case could proceed, it was important to find out in far more detail the veracity of the allegations and whether there were any other witnesses, and he considered an investigation should be carried out.[60]Mr Kerr referred to the Disciplinary Procedure, confirmed he considered there was good reason to suspend Ms McKechnie because, considering the nature of the allegations, it would be reasonable to conclude witnesses may be fearful about cooperating with an investigation if Ms McKechnie remained in post. Mr Kerr went on to suggest that an investigation should be undertaken by an individual nominated by him, and he provided the names of two individuals and provided their CVs.[61]Mr McIntosh did not agree there was a need to suspend Ms McKechnie in circumstances where one of the complainants was absent on long term sick leave and the others had left the employment of the respondent. He advised Mr Kerr that he would seek his own legal advice and respond further.[62]Mr McIntosh emailed Mr Kerr on 18 June 2021 (page 2836). Mr McIntosh firstly sought clarity on who the lawyer from whom Mr Kerr had obtained advice was acting and who was paying the costs. He next confirmed that he did not consider suspension to be appropriate in the circumstances because it risked undermining Ms McKechnie. Mr McIntosh next provided some advice regarding next steps which focussed on formalising the grievances.[63]Mr Kerr felt Mr McIntosh had changed his position and he replied to his email on 18 June (page 705) to make this point and record his surprise. Mr Kerr confirmed his view that the allegations required to be investigated and, given Mr McIntosh’s position, Mr Kerr, as Chair of the Board, would appoint an independent investigator. Mr Kerr invited Mr McIntosh to reconsider his position regarding suspension.[64]Mr Kerr and Mr McIntosh met at the Strathaven Hotel on 23 June 2021 to discuss the matter. Mr McIntosh sent an email to Mr Kerr following the meeting (page 707) in which he set out the “recommended approach”. The recommended approach was for Mr McIntosh to raise the matter with Ms McKechnie and share the documents with her. Then, with the agreement of all parties, that is, Mr Kerr, Ms McKechnie and Mr McIntosh, there would be a discussion to allow Ms McKechnie to give her response and to agree on any subsequent next steps. Mr McIntosh also recommended having regard to the recent employee survey and to conducting “stay” interviews with members of the leadership team to ask them questions such as, “what do you like most about working here”.[65]Mr Kerr responded to Mr McIntosh’s email on 1 July 2021 (page 707) to say that his email did not reflect their discussion. Mr Kerr reminded Mr McIntosh the statements/call notes were to remain confidential and he did not agree they should be shared with Ms McKechnie in advance of an investigation. Mr Kerr confirmed, in summary, that he would instruct someone to carry out an investigation.[66]Mr Kerr considered he was being frustrated in his attempt to have the complaints against the Principal addressed. He decided to arrange an Extraordinary Board Meeting. The Camm review and report[67]Ms McKechnie wrote to Ms Watt at the SFC, on 22 June 2021 (page 482) regarding governance issues at the College. Ms McKechnie noted there were issues of significant governance deficiencies which she had been unable to resolve or improve. Ms McKechnie referred to being “unsupported” by the Chair; that he sought to interfere in operational matters and discourage appropriate investigation into whistleblowing complaints. She also referred to Mr Kerr not taking advice or action in relation to Board member conflict of interest, not making information available to the Board in a timely manner and incurring expenditure on behalf of the College without recourse to senior officers. The letter also made reference to the mishandling of a potential complaint against Ms McKechnie, not adhering to College policy and procedure, refusing to take HR advice and formally closing the complaint, citing it had been withdrawn and the information deleted.[68]The issues raised by Ms McKechnie included reference to an occasion in early November 2020, following receipt of Ms Martin’s grievance, when Mr Kerr and Ms McKechnie had a conversation regarding the continued absence of Ms Martin. Mr Kerr noted it was unlikely Ms Martin would return to work prior to her sick pay expiring and he suggested one option would be for Ms Martin to be given a financial package to leave because this would allow Ms McKechnie to start afresh with a new PA. Mr Kerr viewed his suggestion as helpful, whereas Ms McKechnie viewed this as unwelcome interference.[69]Ms McKechnie also complained of being “instructed” by Mr Kerr to address a pension issue raised by Mr Martin. In early January 2021 Mr Martin contacted Mr Kerr regarding a pension issue (related to pay rises prior to retirement) and asked for Mr Kerr’s help in finding a solution. Mr Kerr emailed Ms McKechnie on 20 January 2021 (page 2598) to confirm the conversation had taken place and that Mr Martin found himself unexpectedly financially disadvantaged in relation to his pension. Mr Kerr noted Mr Martin hoped a fair solution could be found. Ms McKechnie replied the same day (page 2598) to confirm that as it was an operational matter, she had referred it to Mr McIntosh.[70]Mr Kerr viewed this as simply passing on information to Ms McKechnie: he accepted it was an operational matter and had deliberately not gone into details with Mr Martin. Ms McKechnie viewed this as interference on behalf of someone who would have been interviewed as part of the Azets investigation (albeit Mr Martin was no longer an employee, and the Azets investigation had not yet been instructed).[71]The SFC decided to instruct a review to be carried out by Ms Camm. Mr Kerr was made aware the review would take place, but he was not aware the reason for the review was Ms McKechnie’s letter to Ms Watt. Mr Kerr was initially advised the Camm review would not delay the taking forward of the complaints against Ms McKechnie, but in August 2021, the SFC told the Board to suspend action on the complaints until after Camm had reported.[72]Ms McKechnie had not, at the time of writing her letter to the SFC, formally been made aware of the complaints which Mr Kerr had received, but she was highly suspicious of Mr Kerr/his actions and believed that he and Mr Smith were “plotting” against her. Ms McKechnie also understood that Mr Kerr had been speaking to former members of staff.[73]The Camm report was issued in August 2021 (page 741), and included a small number of redactions. There then followed a period whereby various other redactions were made to the report at the insistence of the claimant. The redacted report was received by Mr Kerr, and shared with the Board, on 24 September 2021.[74]The overall conclusion of the Camm report was that there was much to do on setting the culture and tone for the College, but good progress had been made on the recruitment of new Board members, clarifying the roles of committees and ensuring they were aligned with the delivery of strategy. The report also recommended that policies and procedures be subject to a rigorous policy management process, and it further recommended a major review of HR policies to bring them up to date. In particular the section in the Disciplinary Policy regarding suspension was highlighted as being of “concern”.[75]The Camm report disappointed all parties because it caused delay which exacerbated the difficulties between the parties, led to relationships between Mr Kerr, Ms McKechnie and Mr Keegan deteriorating significantly and did not provide advice and support to resolve the situation. For example, the Camm report recommended an informal approach be taken to resolve the relationship difficulties, but by the time Camm reported, the relationships had deteriorated so significantly that this was not possible. Mr Kerr would have engaged in independent mediation, but Ms McKechnie confirmed she was not willing to do so. July 2021 Board Meeting[76]Mr Kerr, having taken advice, understood an EBM could be arranged with only the non-executive members of the Board present to discuss and agree how they wanted to deal with the complaints against Ms McKechnie. Mr Kerr asked Mr Keegan to make the necessary arrangements but was advised by Mr Keegan that he could not arrange a Board meeting in this way. Mr Kerr felt frustrated in not being able to proceed with the EBM in July, but ultimately accepted Mr Keegan’s advice was correct and that a Board meeting with all members present (excluding Ms McKechnie) would have to be arranged.[77]Mr Keegan informed Ms McKechnie of the purpose of the extraordinary board meeting, and the advice he had given to Mr Kerr. August 2021 Board Meeting[78]Mr Kerr asked Mr Keegan to call an EBM in August with all members of the Board, except Ms McKechnie, present. Mr Keegan delayed in responding to Mr Kerr, who interpreted this as a refusal to call the meeting. Mr Kerr accordingly proceeded to call the EBM.[79]Mr Kerr, on 23 August 2021, emailed an agenda for the EBM scheduled for the 30th August 2021, to Mr Keegan. Mr Keegan noted that one item on the agenda was a proposal for Ms Patricia Donnelly, Senior Independent Member (SIM) on the Board, to oversee the investigation process into the complaints against Ms McKechnie. Mr Keegan did not consider this to be appropriate because he had, some months earlier, discovered a box of papers regarding the recruitment of the Principal and he noticed Ms Donnelly’s application for the post. Mr Keegan did not speak to Ms Donnelly about this, or make any check regarding the veracity of his assumption that she had applied for the post. Instead, Mr Keegan, in his email of 24 August to Mr Kerr, which was copied to all members of the Board, noted “You may also wish to note that the SIM has a conflict of interest as she was a previous applicant for the executive role of Principal whilst remaining a Board member”.[80]Ms Donnelly emailed Mr Keegan immediately to inform him that her application for the post of Principal had not ever been submitted, and she questioned why the College had this sensitive and personal information on file. The recruitment agency involved in the recruitment of the Principal subsequently confirmed Ms Donnelly’s position.[81]Mr Keegan also emailed the SFC to express concern that Mr Kerr was going to the Board regarding concerns relating to Ms McKechnie, rather than going to Mr McIntosh, and Mr Keegan expressed his understanding that this was to have been on hold pending the completion of the Camm report.[82]The SFC asked that the EBM due to take place on 30 August 2021, be postponed pending receipt of the Camm report. This was agreed and a meeting, rather than an EBM, took place at which Mr Kerr advised the Board of the reasons why the EBM had had to be postponed.[83]Mr Keegan also emailed all Board members on 24 August 2021 (page 734) and forwarded to them an email which he had sent to Mr Kerr that day (page 735). The email to Mr Kerr set out Mr Keegan’s concerns regarding the actions of Mr Kerr and in particular made reference to HR advice having been given, questioned whether the complainants knew Mr Kerr intended to act on their complaints and noted Mr Keegan considered various governance breaches had occurred. Mr Keegan further noted that he had contacted the SFC for advice and confirmed his advice was that it would be inappropriate to convene the EBM at this time “to discuss an HR matter which has not been subject to any of the usual HR processes”.[84]Mr Keegan’s email caused alarm for some members of the Board.[85]The day after Mr Kerr sent the Agenda for the EBM to Mr Keegan, Ms McKechnie emailed Mr Smith with a complaint about Mr Kerr’s conduct (page 687) which was copied to Mr Hutchinson. Mr Keegan’s contract[86]Mr Keegan was appointed as Interim Board Secretary on 15 March 2021. A written statement of particulars of main terms and conditions of employment was produced at page 292. The statement confirmed the start date of 15 March 2021, and also confirmed the statement was issued on 14 June 2021 (that is, it was issued on the date the initial temporary contract expired and was renewed for a further three month period).[87]Mr Keegan, as Interim Board Secretary, was responsible for providing advice to the Chair and the Board.[88]A variety of terms were used to describe the role carried out by Mr Keegan. The terms Clerk to the Board, Board Secretary and Interim Board Secretary were all used by the parties interchangeably. The term Interim Board Secretary was abbreviated to “IBS” by Mr Kerr in some correspondence.[89]Mr Keegan’s contract, having been extended on the 14 June 2021 for three months, was due to expire on 14 September 2021. An HR officer sent an email to Mr Kerr on 9 September 2021 (page 771) recommending that the contract be extended because there was not yet a return date for Ms Martin. The email asked Mr Kerr if he agreed to an extension and if so, the duration.[90]Mr Kerr replied to that email on 13 September (page 771) saying “I would not wish to agree an extension to the current contract and I would like to discuss this matter with Aileen ..”[91]Ms McKechnie emailed Mr Kerr that day (page 771) to say that she and HR would be happy to discuss the matter further with him. In the interim she noted that she would need to take legal advice and would require clarity regarding the reasons for dismissal. Ms McKechnie advised that the College was required to have a Clerk to the Board and that the appointment and removal of the Clerk was a decision for the Board as a whole.[92]There then followed an exchange of emails between Mr Kerr and Ms McKechnie regarding the taking of legal advice and what that advice meant, with the net effect that whilst this was going on, Mr Keegan continued to work in the role. Mr Kerr believed Ms McKechnie had extended/renewed the contract.[93]Mr Kerr confirmed in an email dated 20 September 2021 (page 774) that his position remained unchanged. He regarded the continued employment of the Interim Board Secretary as unauthorised, and he would not engage with the interim board secretary because this would endorse Ms McKechnie’s decision (to continue Mr Keegan’s employment), which he was not prepared to do. He invited Ms McKechnie to provide dates and times for a meeting to discuss the appointment of Ms Phelps as Interim Board Secretary. This did not happen and Mr Keegan continued in post until his suspension and dismissal.[94]Mr Kerr’s refusal to engage with Mr Keegan and the difficult relationship between Mr Keegan/Ms McKechnie and Mr Kerr resulted in Mr Kerr having no support or avenue for advice. The SFC, in order to address this matter, approached Mr Brian Baverstock to ascertain whether he would be willing to provide support and try to find a resolution. Mr Baverstock was appointed by Mr Smith in October 2021. Mr Baverstock is a governance professional and his role with the respondent was a neutral one. The appointment of Mr Baverstock[95]Mr Baverstock, who had been employed with the SFC for 17 years in a senior governance role and who was now an independent Consultant, was appointed by Mr Ronnie Smith, Chair of the RSB (with agreement of, and funding by, the SFC) to be a governance adviser to the Board of the respondent College in October 2021. This appointment came about because Mr Kerr had complained that he could not access the usual support from Mr[96]Mr Baverstock was not Clerk to the Board: he held a neutral role and was in place to support the Board and help try to resolve the situation. Mr Baverstock met with Mr Kerr to understand his position, and with Ms McKechnie to understand her position.[97]Mr Baverstock observed tensions between Mr Kerr and Mr Keegan and noted the relationship was the complete opposite to what was expected. Communication between the two was non-existent and this led to Mr Baverstock becoming the conduit for information and communications between the two.[98]The relationship between the Chair and the Principal is a critical one which must be fully functioning and effective with clarity around the roles and responsibilities: there is a need for the two to work together. Mr Baverstock noted tensions between Mr Kerr and Ms McKechnie, and he was struck by the severity of this. The working relationship was very poor and almost confrontational. Mr Baverstock, at that time, did not know the cause of the difficulties in the relationship, but he noted that shortly after his arrival the relationship became dysfunctional.[99]Mr Baverstock found that a significant amount of effort and time was being spent by Ms McKechnie, evidencing failures to comply by Mr Kerr (and vice versa to a lesser extent). It was disproportionate and meant there was a lack of focus on the failing relationship. He also found the Chair was isolated by the fact of the lack of support being provided by either Ms McKechnie or Mr August to October 2021[100]Ms McKechnie’s letter of 22 June to the SFC, was followed up by a further letter dated 13 September (page 489) sent to Mr James Dunphy at the SFC. The letter concerned governance issues at the respondent College. The letter reiterated 16 points of concern regarding the actions of the Chair, Mr Kerr, including an alleged refusal to take action in relation to the conflict of interest of Board members; not making pertinent information available to all Board members; engaging differently with Board members; not sharing legal advice with the Board; his ambition to remove the interim Clerk to the Board; the fact the Board would have 10 new members at its next Board meeting due to a failure to succession plan; interference in operational matters; a repeated and persistent refusal to follow due process in relation to complaints handling and data protection and ongoing attempts to introduce a new approach to complaints handling and ongoing breaches of the Code of Good Governance, including the damaged relationship between Mr Kerr and Ms McKechnie.[101]Ms McKechnie also wrote to Mr Keegan on 16 September (page 492) under the terms of the “Public Interest Disclosure Act 1998” and the College’s own Code of Practice on Whistleblowing, regarding these same issues.[102]Ms McKechnie subsequently, on 26 November 2021 (page 496), emailed the Cabinet Secretary for Education at the Scottish Government, regarding the governance issues at the College. She attached to her letter a 56 page document, written under the terms of the Public Interest Disclosure Act 1998 and the terms of the College’s own Code of Practice on Whistleblowing, highlighting the governance failures at the College.[103]Ms McKechnie also sent the letter and her document to the SFC, the Commissioner for Ethical Standards in Public Life in Scotland and the Office of the Scottish Charity Regulator on 26 November 2021.[104]Mr Kerr met (remotely) with Ms McKechnie and Mr Keegan on 25 August 2021. Ms McKechnie and Mr Keegan wanted Mr Kerr to tell them what he was up to. The meeting quickly broke down and Mr Kerr left the call abruptly because he considered it “horrendous” and that Mr Keegan had been “ferocious”.[105]Ms McKechnie emailed Ms Watt, SFC, on 15 July 2021 (page 485), to share an email she had received from Mr McIntosh regarding his absence from work due to work-related stress. Ms McKechnie noted she “assumed”, following discussions with Mr McIntosh, that the issues of concern raised by him related to one or more members of the College Board. Ms McKechnie wished to know if other members of staff were in a similar position of risk and whether she could be given information regarding the “issues” to allow her to support Mr McIntosh appropriately.[106]Ms McKechnie wrote to Mr Smith on 3 September (page 488) regarding safeguarding concerns highlighted in the SFC review report, which had described the “management style of the Chair as having reportedly serious impact on others”. Ms McKechnie wished immediate support and advice in dealing with the situation. She noted she had copied her letter to the SFC and the Scottish Government.[107]Ms McKechnie wrote again to Mr Smith on 20 September (page 495) on the same subject, to provide an update. Ms McKechnie noted staff would not engage with the Chair on a one-to-one basis, and that would include the Interim Clerk and the Head of HR would not attend the HR committee meetings in the interim. Ms McKechnie looked forward to any advice Mr Smith could offer to support the situation.[108]Ms McKechnie also raised various complaints regarding the conduct of Mr Kerr. A letter dated 24 August 2021 (page 687) was sent to Mr Smith regarding a significant deterioration in relations between the Chair and her senior team, including the Interim Clerk, which had made the position untenable. Ms McKechnie believed the Chair was progressing a longstanding, orchestrated campaign of harassment and victimisation against her, which had been ongoing since at least September 2020 and which had escalated significantly since she instigated the SFC review of governance within the College. Ms McKechnie referred to the Chair previously mishandling a complaint raised against her and noted she had been advised by colleagues that the Chair had been in touch with staff who were absent on long-term sick, and former members of staff. Ms McKechnie believed this was evidence of an orchestrated and coercive campaign aimed to both discredit her and the College, and to encourage her exit from the College. The letter was copied to the Vice Chair, Mr Hutchinson, the SFC and the Scottish Government.[109]Ms McKechnie followed this up with a further letter to Mr Smith on 7 September (page 691) in which she raised a formal grievance against the Chair, for repeated and sustained breaches of College policies and procedures.[110]Ms McKechnie also sent a letter to Audit Scotland on 20 May 2022, making the same points as above.[111]There was a further letter to Mr Smith on 17 September (page 693) raising another formal grievance against the Chair for breaching employment law ((i) instruction to suspend the Principal without regard to contractual obligations or HR policy and(ii) differential treatment of staff based on a protected characteristic, in relation to the complaints handling approach adopted) and breach of the Data Protection Act in respect of mixed and multiple breaches of her personal data.[112]Mr Kerr was not aware of the letters sent by the claimant at the time. Mr Hutchinson was also not aware of the letters sent by the claimant at the time, with the exception of the letter of 24 August 2021 which was copied to him.[113]Mr Keegan wrote to Ms McKechnie on 25 September 2021 (page 617) under the terms of the Public Interest Disclosure Act 1998 and the College’s own Code of Practice on Whistleblowing to complain that since taking up his role, he had become increasingly concerned by the behaviour and actions of the Chair, Mr Kerr, which he considered breached the Further and Higher Education (Scotland) Act 2005; the Post-16 Education (Scotland) Act 2013; the Code of Good Governance and the Guide for Board Members in the College Sector. Mr Keegan then referred to the breaches which included seeking to call the Board meeting in July 2021; not providing information in advance of the EBM held on the 30 August; no evidence of engaging in a constructive and effective manner with the Principal and Board Secretary and refusing to take advice.[114]Mr Keegan also sent an email to his local MSP (page 625) attaching a copy of the letter he had sent to Ms McKechnie (above) and referring to the “fractured relationships” between the Chair, and the Principal and Interim Clerk.[115]On 20 October, Mr Keegan emailed Mr Smith (page 834) regarding governance concerns and the refusal of the Chair, Vice Chair and SIM to engage with him. He asked Mr Smith to get answers regarding the points of concern and noted that if this was not possible he would write to the SFC. 4 November Board meeting/conflict of interest[116]Mr Kerr, at the start of each Board meeting would ask for declarations of interest and he, Mr Smith and Ms McKechnie would each make their declarations. Mr Chris McDowall was a long-standing member of the Board and he is an employment lawyer and partner with Anderson Strathern, who had a contract to provide advice on certain matters to the College. Mr McDowall had registered his interest as a partner in Anderson Strathern.[117]There was a large number of new Board members at the Board meeting on 4 November and so Mr Kerr asked again for declarations of interest: none were made. Mr Keegan, at this point, interjected and stated “have you not got something to declare Chris”.[118]The senior members of the Board, together with Mr Baverstock, considered Mr Keegan’s interjection to be inappropriate, rude and confrontational. Mr Hutchinson spoke to Mr Keegan after the meeting to express his displeasure at what had happened. The issue related not only to the way in which Mr Keegan had interjected but also to whether it had been correct to intervene.[119]There followed an exchange of emails between Mr Hutchinson and Mr Keegan. Mr Hutchinson wanted to know why Mr Keegan had acted as he had, and what conflict had been identified which required Mr McDowall to declare his day job (page 632). Mr Keegan replied (page 633) to explain he thought it possible one of the new members might ask about legal advice regarding the Azets report.[120]Mr Hutchinson replied the following day (page 633) to say that in his opinion Mr Keegan had acted outside the parameters of his role, and the manner in which the interjection had been made showed a complete lack of respect to Mr McDowall, the Chair and the Board. Mr Hutchinson considered that if Mr Keegan had thought there was a conflict he should have explained this. Mr Hutchinson noted he had lost all confidence in Mr Keegan to perform his role.[121]Mr Baverstock also sent an email (page 637) noting his position that there was confusion between an “interest” and “a conflict of interest” and he endorsed Mr Hutchinson’s request for a clearer explanation from Mr Keegan on why he thought the situation had required a declaration from Mr McDowall. Mr Baverstock also made the point that if questions had arisen regarding legal advice and Azets, Mr McDowall could, at that stage, have declared an interest and left the discussion.[122]Mr Keegan emailed Mr Hutchinson on 14 November 2021 confirming his belief that Mr McDowall should have declared an interest before the start of the Board meeting on 4 November.[123]Mr Hutchinson wrote to Mr Smith on 18 November (page 684) regarding issues with Mr Keegan which included the distribution of information regarding Ms Donnelly applying for the Principal’s position when in fact this was not true; his blocking of the Chair’s request to convene an EBM and distributing letters of support for the Principal and the manner in which he had interjected at the Board meeting on 4 November. Mr Hutchinson went on to say that initially Mr Keegan’s appointment had been welcomed, but the above issues highlighted significant failings in his performance and he had breached independence and neutrality and was more aligned with the Principal.[124]Mr Keegan submitted a complaint to the Commissioner for Ethical Standards on 24 November in which he reiterated the issues raised in his letter to Ms McKechnie on 25 September 2021 (page 640). The complaint by the Senior Independent Member[125]The whistleblowing complaints made by Ms McKechnie and Mr Keegan were referred to the Senior Independent Member (SIM) Ms Donnelly to deal with. Ms Donnelly met with Ms McKechnie and Mr Keegan on 5 November.[126]Ms Donnelly wrote to Mr Smith, Chair of the RSB, on 10 November (page 680) to raise concerns regarding the conduct of Ms McKechnie and Mr Keegan and her wish to raise these concerns via the complaints procedure. Ms Donnelly, in her letter, referred to being “intimidated and ridiculed, with their line of questioning interrogative and aimed at undermining the process and [my] credibility”. Ms Donnelly then set out a long list of bullet points from her meeting with Mr Keegan, and similarly from her meeting with Ms McKechnie, to support her complaint. Events leading to 30 November Board meeting[127]The situation involving Mr Kerr, Ms McKechnie and Mr Keegan became increasingly complex with dysfunctional relationships and tit-for-tat complaints about the conduct of Mr Kerr, on the one side, and Ms McKechnie and Mr Keegan on the other. Matters had moved on significantly since the time when initial legal advice had been obtained by Mr Kerr. The Board wanted to put all complaints involving Mr Kerr, Ms McKechnie and Mr Keegan to an independent investigator and for them to make recommendations. Fresh legal advice was obtained regarding the procedure to be followed and, from this point on, the Board acted in accordance with that advice.[128]The legal advice obtained was that there should be two separate but interlinked investigations: one into the conduct of Mr Kerr and one into the conduct of Ms McKechnie and Mr Keegan.[129]Mr Kerr, Ms McKechnie and Mr Keegan were invited to step aside to allow the investigations to proceed. Mr Kerr agreed to step aside. Ms McKechnie and Mr Keegan did not agree to this.[130]Mr Hutchinson, Vice Chair of the Board called an Extraordinary Board meeting for 30 November 2021. 30 November 2021 Board meeting[131]Mr Hutchinson prepared a document entitled Complaints and Allegations; proposed actions (page 869) for the Board meeting. The document, in the introduction, confirmed the Board was facing the difficult situation of having to consider complaints against the Principal and Interim Board Secretary and also complaints from the Principal, Interim Board Secretary and others against the Chair. The document further confirmed Mr Hutchinson considered the complaints should be treated as conduct matters and, in the case of the employees, investigated formally under the College Disciplinary Procedure, and in the case of the Chair investigated formally in a similar manner.[132]The document confirmed the Principal and Interim Board Secretary had been invited to take a period of special leave to allow the investigation to take place, but had not agreed to do so. Accordingly, the Board were to be asked to approve their suspension from duty to allow the investigation into their conduct to take place. This was considered necessary because the complaints against the Principal and the Interim Board Secretary were significant and included allegations of bullying, harassment and intimidation.[133]The Chair (Mr Kerr) agreed to step aside, and so the Board was requested to confirm that, as Vice Chair, Mr Hutchinson would take on the duties of Chair whilst the investigations were ongoing.[134]The document noted that as the Board would be involved in any disciplinary hearing to follow from the investigations, no details of the complaints against the Chair, the Principal or the Interim Board Secretary would be provided.[135]The document acknowledged some Board members would have some knowledge of the various complaints because some of the complaints had come from Board members. There was also a recent complaint raised against Mr Hutchinson. It was noted that whilst a level of knowledge and/or involvement in the various complaints may be relevant when considering how any of the complaints were taken forward if substantiated, at this stage, all the Board was being asked to do was consider suspension and appoint independent investigators to investigate the complaints.[136]The agenda for the Board meeting was produced at page 868. There was, in addition to the paper prepared by Mr Hutchinson, a letter from Ms Watt, SFC (page 877); correspondence from the Head of HR, Mr McIntosh (page 879); legal advice from another firm of solicitors (page 881); two papers produced by Mr McIntosh (pages 887 – 898); a further letter from Mr McIntosh (page 903); a personal statement from Ms McKechnie (page 906) and one from Mr Keegan (page 910); a trade union paper in support of Ms McKechnie (page 918); a further paper of support from a trade union, noting a vote of no confidence in the Chair/Board (page 922); correspondence from another trade union expressing no confidence in the Chair (page 925) and many more letters of support for Ms McKechnie.[137]The Board, by a majority, voted to approve the appointment of Ms Liz McCormick as an independent investigator to investigate the complaints made against the Principal, Ms McKechnie and the Interim Board Secretary, Mr Keegan, under the College Disciplinary Procedure. The Board also voted, by a majority, to appoint the recommended investigator, Ms Joanne Bowerman, to investigate the complaints against the Chair in a procedure aligned to the College disciplinary procedure but recognising Mr Kerr was not an employee.[138]The Board also, by a majority, approved the suspension of Ms McKechnie and Mr Keegan on full pay and benefits for a period of 4 weeks, to be continued in 4 week blocks until the conclusion of the process. The Board also accepted the offer of Mr Kerr to step-aside pending the outcome of the investigation. Suspension of Ms McKechnie and Mr Keegan[139]Ms McKechnie and Mr Keegan were, by letter of 1 December, (page 932 and 930 respectively) advised of their suspension from work to allow an investigation to take place.[140]Ms McKechnie and Mr Keegan both went off on sickness absence almost immediately after their suspension, and they were absent for a period of 5 – 6 months. This caused a delay in the progress of the investigation because neither were fit for interview during the period of their absence. Liz McCormick’s investigation[141]Ms McCormick was appointed as independent investigator to investigate concerns about the conduct of the Principal, Ms McKechnie and the Interim Board Secretary, Mr Keegan. The letter of appointment was produced at page 1023. Ms McCormick’s point of contact was Mr Baverstock, and a secure data room was set up for all documents.[142]The Terms of Reference (page 1026) noted Ms McCormick’s task was to conduct an objective and proportionate investigation; to determine, for each of the two individuals, if there was a case to be answered under the College Disciplinary procedure; to make recommendations based on the findings and to provide a report to the College.[143]Ms McKechnie and Mr Keegan were both on a period of sickness absence for approximately 6 months following their suspension. This meant Ms McCormick was unable to interview them until they had been signed fit to participate in the process in the Summer of 2022.[144]Ms McCormick was provided with all relevant documentation including governance documents and policies and procedures; correspondence; letters of complaint from Ms Martin, Mr Martin and Ms Chambers and the five call notes made by Mr Kerr. In addition to this, Ms McCormick gathered documents from Ms McKechnie and those she interviewed. There was no suggestion any relevant documentation had not been provided to Ms McCormick.[145]Ms McCormick, in the absence of Ms McKechnie and Mr Keegan, proceeded by interviewing the relevant witnesses, including Mr Kerr, Mr Smith, Mr Hutchinson, Ms Donnelly, Mr McDowall and seven members of the leadership team (which included Ms McManus, Deputy Principal and Mr McIntosh, Head of HR) and a significant list of other people, who were all noted and referred to in her Report. Ms McCormick produced summary notes after each interview, which she agreed with the interviewee in all cases except Ms McKechnie, Mr Keegan and Mr McAllister, Head of Finance (whose interviews had, at their request, been recorded).[146]Ms McCormick acknowledged the terms of the investigation were wide, but she considered this was necessary due to the length of time which had passed and the escalation of matters. Ms McCormick adopted a chronological approach, and started at the beginning in order to understand how things had snowballed.[147]Ms McCormick, having regard to the five initial complaints, summarised and anonymised the issues being raised, and organised them into ten themes. The themes were based on approximately one hundred individual statements of complaint or negative views of the conduct of Ms McKechnie, taken from the complaints. The themes were: Demeaning, unkind, rude or bullying behaviour; Inappropriate [use] of excessive criticising; Controlling; Gaslighting (a term which Ms McCormick defined in her report); Fearfulness; Lack of empathy/concern for wellbeing; Coldness/remoteness; Contractual issues; Access and communications.[148]Ms McCormick accepted the five initial complaints regarding Ms McKechnie focussed more on how Ms McKechnie’s behaviour and management style had made them feel, but confirmed that “when you put all the notes and documents from these complainers together, there is a weight of consistent sentiment that required investigation”.[149]Ms McCormick, in the process of investigating Ms McKechnie’s conduct, identified other matters beyond the original ten themes which emerged. These matters were: Black and white thinking ; Use of emotive and repetitive language; Discrediting/blaming others; Creating hinderance and Polarisation and factionalism.[150]Ms McCormick met with Ms McKechnie on eight occasions to interview her and obtain her response to the complaints/themes and supporting statements and documents. The interviews were recorded and Ms McCormick’s summary note following the interview was issued for agreement, but this proved not possible. Ms McCormick, in advance of each interview, would issue to Ms McKechnie the themes/points for discussion and examples of the behaviours to be discussed, together with questions to be answered. Ms McKechnie had an opportunity to have her say in the investigation and to provide a significant volume of documentary evidence.[151]Ms McCormick concluded there was a case to answer in respect of two of the original ten themes – inappropriate or excessive criticism and fearfulness; and a case to answer in respect of the five additional matters – black/white thinking and dogmatism; use of emotive and repetitive language; discrediting/blaming others; creating hinderance and polarisation and factionalism.[152]Ms McCormick, in reaching her conclusions, considered, what she termed, various “hypotheses”. These, in essence, were various possible explanations for what had/may have happened. The hypotheses were that Ms McKechnie’s conduct had been within the bands of reasonable behaviour and therefore there was no case to answer; that she had been subjected to an orchestrated campaign to remove her from post; that she had been the victim of misogyny or bias and that she was a poor fit for the role.[153]The third hypothesis was Ms McKechnie’s position: she believed there had been an orchestrated campaign to remove her from post; she believed Mr Kerr to be at the heart of this and she further believed he had procured complaints from the five individuals, who each had an axe to grind, particularly Mr Martin, who had been due to be interviewed as part of the Azets investigation and Ms Martin, his wife.[154]Ms McCormick considered each of these possible explanations for the alleged conduct before reaching her conclusion there was, on the balance of probabilities, a case to answer in respect of the matters set out above.[155]The investigation into Mr Keegan’s conduct focussed on the quality of his advice; partisanship; the complaint by Mr Hutchinson and behavioural concerns. Ms McCormick interviewed Mr Smith, Mr Kerr, Mr Hutchinson, Mr McDowall and a new Board member Ms Whittaker regarding the issue of the quality of Mr Keegan’s advice. She interviewed Mr Kerr, Mr Hutchinson, Ms Donnelly, Ms Whittaker, Ms McManus (the Depute Principal) and the Heads of Finance, Student Services, and Business, Construction and Health.[156]Mr Hutchinson’s complaint centred on the actions of Mr Keegan regarding the EBM’s proposed for July and August 2021 and the conflict of interest issue. Ms McCormick interviewed Mr Kerr, Mr Smith, Mr McDowall and Ms Donnelly regarding this matter.[157]The complaint regarding Mr Keegan’s behaviour focussed on the issue of Ms Donnelly’s application for the post of Principal, and whether there had been any breach of GDPR; and Ms Donnelly’s complaint following the meeting with Mr Keegan regarding his whistleblowing letter. Ms McCormick interviewed Ms Donnelly, Mr Hutchinson, Ms McDowall, Ms McManus and the Chair of the Audit and Risk Committee.[158]Ms McCormick met with Mr Keegan to put to him each of the themes and the evidence of the witnesses she had interviewed. The issues of dogmatism and arrogance, disrespect for Board members, seeking to discredit Board members and orchestration, obstruction and hindrance were also put to Mr[159]Ms McCormick considered various “hypotheses” for the alleged conduct, and they were that Mr Keegan lacked the requisite experience in the role of Board Secretary; he made a number of mistakes which may have damaged Board members’ confidence; he had been placed under pressure to take sides, or manipulated into doing so or he had chosen to take sides. Ms McCormick, having considered the evidence provided by Mr Keegan and the various hypotheses, concluded there was a case to answer in respect of the quality of Mr Keegan’s advice; partisanship; Mr Hutchinson’s complaint (including other GDPR matters) and behavioural concerns (including Ms Donnelly’s letter of complaint).[160]Ms McCormick’s Report was produced at page 1680. Joanne Bowerman’s investigation[161]Ms Joanne Bowerman was invited to investigate the complaints, including whistleblowing complaints, against Mr Kerr. The complaints made against Mr Kerr were by Ms McKechnie (24 August 2021, 7 September 2021, 16 September 2021 and 17 September 2021); Mr McIntosh (6 September 2021); Mr Keegan (5 October 2021 and an undated complaint) and from Ms Jean Carratt, a Board member.[162]Ms Bowerman met with Ms Carratt and Mr McIntosh regarding their complaints in January 2022. She met with Mr Keegan three times in May, and with Ms McKechnie six times in June regarding their complaints. Ms Bowerman made a record of each meeting which she agreed with the relevant individual. Ms McKechnie provided a “phenomenal” amount of evidence, updated the list of complaints and provided hundreds of pages of documents.[163]Ms Bowerman then met with Mr Kerr to discuss the complaints which had been made. She described that Mr Kerr’s practice was to go through the notes which she provided of their interview and then compile, in respect of each allegation, the email correspondence which he considered relevant.[164]Ms Bowerman subsequently interviewed eight other people: Mr Hutchinson, Mr Smith, Mr McDowall, Ms McManus, Ms Donnelly, Mr Peter Scott (Acting Clerk to the Board), Ms Chambers and Ms Patterson, Data Protection Officer.[165]Ms Bowerman had limited knowledge and understanding of the governance documents and she received differing accounts of what the governance documents meant. Ms Bowerman, with Mr Baverstock’s agreement, spoke with Mr Peter Scott, who had been appointed Acting Clerk to the Board, for advice regarding governance documents and issues.[166]There were six allegations against Mr Kerr, broken down into 30 sub-points. The first allegation was that Mr Kerr had displayed behaviours that were bullying and/or harassment and/or coercive and/or victimising in nature. One of the sub-points was that Mr Kerr refused to extend Mr Keegan’s contract as punishment and retaliation for his refusal to carry out coercive instructions which contravened the Code of Good Governance and put the College at risk both reputationally and legally as alleged by Mr Keegan. A second sub-point was that Mr Kerr was progressing a long-standing, orchestrated campaign of bullying, harassment and victimisation against Mr McKechnie since at least September 2020; and this includes Mr Kerr’s management of a number of statements about Ms McKechnie, as alleged by Ms McKechnie.[167]One of the points raised by Mr Keegan in his complaint regarding Mr Kerr, was that Mr Keegan found Mr Kerr’s reference to his position as “IBS” to be derogatory and demeaning. Ms Bowerman found that Mr Keegan’s role was referred to in many different ways by different people: for example, the role was referred to as Interim Board Secretary; Interim Clerk to the Board and Interim Board Clerk. Mr Kerr did not dispute that he used the term “IBS” and had done so because he wanted to distinguish between the Board Secretary (who was Ms Martin) and the Interim Board Secretary, Mr Keegan. Ms Bowerman was not able to pin-point when the term “IBS” had started to be used. She found that Mr Kerr had not made the connection between the use of “IBS” and Irritable Bowel Syndrome and concluded he had not used the term deliberately. However, she understood how Mr Keegan would find this to be derogatory and demeaning.[168]The second allegation was that Mr Kerr had organised an EBM to discuss an HR matter.[169]The third allegation against Mr Kerr was that he had repeatedly attempted to go against College policies and procedures.[170]The fourth allegation was that there was a conflict of interest and Mr Kerr failed to address this.[171]The fifth allegation was that Mr Kerr had not followed the College’s appointed legal advisor or HR advice.[172]The sixth allegation was that Mr Kerr had failed to succession plan and his actions resulted in governance failings.[173]The seventh allegation was that Mr Kerr had failed to promote positive relationships. There were four sub-points to this and Ms Bowerman found there was some evidence to support one of these points. Ms Bowerman noted (page 1067) that “It is fully acknowledged that their working relationship became strained, but consideration must be given to Ms McKechnie’s part in that. The Code of Good Governance states that the Principal must support effective communication and interaction, and there was evidence of Ms McKechnie not always doing that. Mr Kerr had a responsibility as Chair to engage with Ms McKechnie in a way that was constructive and effective, and the Investigating Officer believes that he did that as best he could, and therefore has not breached the Code of Good Governance in his communications with Ms McKechnie.”[174]Ms Bowerman produced a Report (page 1070). Ms Bowerman also produced an Executive Summary (page 1036) and a full timeline (page 1643).[175]Ms Bowerman noted, in the Executive Summary (page 1069) that she was aware that another investigation into allegations against Ms McKechnie and Mr Keegan was running in tandem to her investigation. She stated that “In considering the allegations against Mr Kerr, the Investigating Officer questioned whether it was rather the case that Ms McKechnie displayed bullying, and specifically gaslighting, behaviour towards Mr Kerr. It is therefore recommended that the reports from both investigations be read in parallel”.[176]Ms Bowerman did, whilst investigating the complaints against Mr Kerr, make various observations regarding Ms McKechnie and Mr Keegan. For example: Ms Bowerman commented that it was clear the relationship that should exist between the Chair, Clerk and Principal was not evident, and while Mr Keegan recognised the need for the three of them to work together there was evidence of him showing inappropriate allegiance to the Principal at the expense of the working relationship between the three. Mr Kerr’s Principal, Ms McKechnie failed him. Mr Kerr was not able to rely on the Principal for support, and Ms McKechnie withheld pertinent information from the Board, believing they had no right to it and she made every attempt to avoid any investigation of the complaints against her. Given the level of mistrust Ms McKechnie has in Mr Kerr, and Mr Kerr has in Ms McKechnie and Mr Keegan, there would appear to be an irretrievable breakdown in the working relationships between the Chair and Principal and the Chair and Interim Clerk to the Board. In respect of Mr Keegan’s email to the Board ahead of the August EBM, Ms Bowerman noted that she did not believe the information shared by Mr Keegan and the way in which he went about it did anything to promote positive working relationships in the Board, and particularly between the Chair and Board members. It created division and raised further questions for some Board Members. Ms Bowerman believed this served as evidence of Mr Hutchinson, Mr Smith and Mr McDowall’s belief that Mr Keegan was trying to block Mr Kerr from taking action. Further, by sharing the letters ahead of the EBM, Mr Keegan further demonstrated his disagreement with the process and his alignment to the Principal. The only evidence presented by Ms McKechnie to demonstrate she had received differential treatment was that the outcome for the previous Principal was different. It was evident that Mr Keegan failed to deliver on key aspects of his role description. It was evident to Ms Bowerman that there was a lack of understanding of the system of corporate accountability on Ms McKechnie’s part, with Ms McKechnie restricting and controlling the flow of information to the Board and failing to recognise the limits of her responsibilities. Whilst Mr Keegan had an important governance role to play in advising the Board, the committees and individual Board members, he was perceived to favour the Principal in doing so which, when coupled with Ms McKechnie’s skewed understanding of corporate accountability, left the Board feeling excluded to the detriment of the management of strategic and governance matters within the College. With regard to the issue of Mr Martin’s pension, Ms Bowerman found it was evident that Mr Kerr did not wish to engage in this operational matter, but was instead directing the issue to Ms McKechnie for her to manage, at Mr Martin’s request. There was no evidence to conclude that Mr Kerr had any personal connection with Mr Martin. Ms Bowerman noted that throughout the investigation there were numerous examples of Mr Kerr feeling that information was withheld from the Board by Ms McKechnie (for example, CVs for the position of Interim Board Secretary; a copy of Mr Keegan’s contract) and Ms Donnelly had felt the same. There was also a reluctance on the part of Mr McIntosh to share information with Mr Kerr, including a copy of Ms McKechnie’s contract and legal advice he obtained relating to the management of the complaints against Ms McKechnie. Ms Bowerman acknowledged that in quoting from the Scheme of Delegation, Ms McKechnie stated that “The Principal, as Chief Executive of the College, shall be responsible for the operational management of the College” but she neglected to include the remainder of the paragraph which states: “subject to strategic and policy direction by the Board and the terms of any specific authority reserved to the Board”. Ms Bowerman concluded Ms McKechnie had chosen to be selective and interpret the legislation as she saw fit and was dismissive of the Board as her employer as a result. 8 December Board meeting[177]Mr Hutchinson advised the Board that the investigation reports had been received and would be made available to Mr Kerr, Ms McKechnie, Mr Keegan and members of the Board. There was a need to ensure the Reports were protected from wider distribution at that stage, and so all data and access to it was controlled through the solicitors acting for the Board, who had established a data room. This control meant the Reports and documents were essentially “read only” and could not be printed off or downloaded. The appendices referred to in the Reports were not made available to the parties or the Board due to their size.[178]Mr Hutchinson wrote to Mr Kerr (page 1818), Ms McKechnie (page 1813) and Mr Keegan (page 1820) on 9 December 2022 regarding the outcome of the investigation and the next steps. The letter confirmed access to the investigation reports and documents, and also confirmed they were being given access to exactly the same information which was being made available to the Board members, and on the same terms and conditions. The letter referred to a Board meeting arranged for 19 December 2022 and invited attendance at that meeting, which was being held to determine what, if any, steps ought to be taken in light of the outcome of the investigations: one possible outcome for Ms McKechnie and Mr Keegan was the termination of employment. In fact the Board meeting arranged for 19 December did not take place because Ms McKechnie and Mr Keegan asked for more time to digest the reports before attending the meeting.[179]The letter to Ms McKechnie noted that both investigation reports had raised serious concerns about her conduct, suitability for the role of Principal and breaches of governance. The letter listed the allegations which would be considered by the Board and noted the page/paragraph number of the report where those matters had been addressed as follows: “Conduct You will see from Lis McCormick’s report that she has found evidence that you have displayed the following alleged behaviours (for which in some cases there is supporting evidence in the JB report as noted below) Abuse of Power – summarised at paragraph 30 of the LM report; Demeaning, unkind, rude of bullying behaviour … Inappropriate or excessive criticism/discrediting or blaming others; Controlling behaviour; Gaslighting; Creating fearfulness; Coldness/remoteness Policy and process over-emphasis/creating hinderance; Factionalism and polarisation; In addition, JB’s report identifies the following conduct issues: - Refusal to follow instructions of the Board and - Making false statements Breakdown in relationships Both investigators found that there was a breakdown in relationships between you, the Board (and specifically the then Chair, Andy Kerr) and the Interim Board Clerk (Brian Keegan). These breakdowns led to significant governance failures in the College. It is alleged that your actions and behaviour were largely responsible for, or at least a significant factor in, the breakdown in those relationships. In particular it is alleged that - You proactively hindered the Board; - You did not support the Chair in his role, as was your obligation as Principal and - Liz McCormick concluded that it is possible to work for you but not with you and it is alleged this is evidence from the breakdown in relationships which have occurred. Unsuitability Persistent behaviour not consistent with the Nolan Principles and Code of Good Governance; Lack of judgment, including the amount of repetition and overall volume of communications which is referenced in both reports; Lack of self-awareness/insight into your behaviours and Black and white thinking.”[180]The letter to Mr Keegan noted that both investigation reports had raised serious concerns about his conduct, performance and breaches of governance. The letter listed the particular allegations which would be considered by the Board and provided the page/paragraph number of the report where those matters had been addressed as follows:- “BK, while doing a number of useful things to help the College, over-reached his remit, interpreted policy and governance guidance very narrowly and employed a personal style disrespectful, dogmatic and inflexible in his dealings with the Board. In particular: - Quality of advice/performance; - Partisanship; - Hindering attempts by the Chair to convene an EBM; - Breach of GDPR in relation to the SIM (Ms Donnelly) - Issues of conflict addressed incorrectly and in an inappropriate manner; - Inappropriate behaviour – displaying arrogant and inappropriate behaviour towards Ms Donnelly; being dogmatic and arrogant in the conduct of his role; sought to discredit members of the Board on several occasions and behaviour had a negative impact on the Board’s ability to exercise good governance and - Governance”[181]The letters to Ms McKechnie and Mr Keegan also went on to provide an explanation for the process adopted. This explained that when, in the past year, flowcharts and FAQs had been prepared, it was envisaged that a process akin to the College Disciplinary Procedure would be followed. However, in the event that dismissal was a live consideration, then this was a decision which could only be taken by the Board and it could not be delegated. The letter went on to explain that now the Investigation Reports were available and dismissal was a live consideration, the College Disciplinary Procedure was rendered inappropriate because it was clear that the issue of employment/termination of the Principal and Clerk to the Board must be made by the Board and could not be delegated. Board meeting on 16 January 2023[182]The Board meeting was re-arranged for 16 January 2023 and Ms McKechnie, Mr Keegan and Mr Kerr were invited to attend. They were advised they would have an opportunity to make representations to the Board, but that time would be limited to one hour each. The decision regarding timing had been taken because there was an understanding that the three cases were linked and it was important for the Board to hear from each of the three individuals on the same day and have time for deliberations.[183]The Board heard representations from Ms McKechnie. Ms McKechnie’s representative noted the time allowed for representations was unreasonable and there was no possibility Ms McKechnie could give a full response to all accusations. She also noted that there was no mechanism in place for an appeal and made reference to the ACAS Code. The representative also made reference to the College’s Disciplinary Procedure and invited the Board to split into a panel to hear the disciplinary and one to hear an appeal.[184]Ms McKechnie’s representative questioned why the Investigating Officers were not present to be questioned regarding their Reports. She also suggested Ms McKechnie had been the subject of an orchestrated campaign to remove her.[185]Ms McKechnie had prepared a 140 page response which she submitted to the Board and invited them to read and consider. She also made an oral submissions in which she challenged the fairness of the investigation and made reference to new allegations being introduced by the Investigating Officers; findings being made by Ms Bowerman, who was not tasked with investigating her conduct and many allegations not being put to her. Ms McKechnie also suggested that evidence of collusion between the five initial complainants was clear and they had a motive for acting as they had because three were involved in the Azets investigation.[186]Mr Keegan made representations and noted he had procedural concerns in circumstances where the disciplinary policy had been set aside, and he was not comfortable with the procedure adopted, including the fact there was to be no appeal. Mr Keegan suggested Ms McCormick was not independent and had links with Mr Kerr. He also suggested that it was not appropriate for Mr Hutchinson, who had submitted a complaint about Mr Keegan, to chair the Board which was to decide about his future. Mr Keegan then addressed each of the allegations and put forward his side of the matter.[187]Mr Kerr (whose tenure as a Board member had lapsed in May 2022) confirmed he was not seeking to return to the Board. The Board accordingly had no decision to make in respect of Mr Kerr.[188]The Board determined they had sufficient information to make a decision in relation to Ms McKechnie and Mr Keegan. The Board deliberated on the case against Ms McKechnie and concluded that her behaviour, as described in the letter to her on 9 December 2022 (and as detailed in the investigation reports) amounted to gross misconduct for which Ms McKechnie should be summarily dismissed. This was a unanimous decision of the Board. The Board did give lengthy consideration to whether the conduct was misconduct or gross misconduct, but based on the investigation reports and her actions, which included not showing any remorse or contrition, it concluded the conduct was gross misconduct.[189]The Board next deliberated on the case of Mr Keegan and concluded that his behaviour, as described in the letter of 9 December and in the two investigation reports, amounted to gross misconduct and that Mr Keegan should be summarily dismissed. The Board did have regard to the circumstances in which Mr Keegan was working, but concluded this did not excuse his actions. Mr Keegan was very experienced and should have known better: he had failed in his obligation to the Board to be open and impartial.[190]The Board’s decisions were unanimous in both cases.[191]Mr Hutchinson telephoned Ms McKechnie and Mr Keegan to advise of the outcome of the Board meeting, and then sent a letter of dismissal to each (page 2010 Ms McKechnie and page 2012 Mr Keegan).[192]The letter of dismissal sent to Ms McKechnie detailed the reasons for dismissal and confirmed that the evidence gained from the investigations showed that she had deliberately, and against the best interests of the College, attempted to frustrate the Board in exercising their statutory duties and that it was particularly concerning that there had been no recognition of her failings, or willingness to take responsibility for them. The letter noted this had continued throughout the process and at the meeting the previous night. The Board accepted Mr Kerr’s actions in seeking to investigate the complaints was correct, but Ms McKechnie had prevented him from doing so in an attempt to avoid scrutiny. Her reaction to the complaints had led to the breakdown in relationships between her and the Board and a breakdown in governance at the College.[193]The letter confirmed the breakdown in relationships was not limited to Mr Kerr, and that the Board as a whole no longer had trust and confidence in her.[194]The Board also concluded there was substantial evidence of significant failures by Ms McKechnie and that she had behaved in a way that was incompatible with her duties and responsibilities as Principal of the College. The Board therefore determined that even if they were wrong to conclude that any behaviour amounted to gross misconduct, her dismissal would nonetheless have been merited on the basis of her conduct, capability and/or some other substantial reason (being, amongst other things, the inability to maintain the relationships required for the role or conduct herself in the manner required of a Principal of an FE College). Individually, there were serious concerns under each of these categories, and cumulatively they created a position where her continued employment was untenable. This was particularly so where, throughout the whole process including at the Board meeting on 16 January, Ms McKechnie failed to acknowledge any failings on her part or demonstrate any insight into her behaviours.[195]The letter confirmed there was no right to appeal the decision.[196]The letter to Mr Keegan explained the reason for dismissal was because the Board concluded that the evidence gained from the investigations showed he had failed in his duties as Clerk to the Board, to advise and support the Board and remain impartial. Instead, he had deliberately hindered the Board and aligned himself with the Principal, placing himself in opposition to the Board. Along with the Principal, and against the best interests of the College, he had frustrated the Board in exercising their statutory duties and contributed to the breakdown in governance at the College.[197]The Board acknowledged that prior to these issues arising, Mr Keegan had done a lot of good work for the College. However, he had behaved in a way that was incompatible with his duties and responsibilities and this had materially contributed to a breakdown in the relationship between him and the Board as a whole and had caused the Board to lose trust and confidence in him.[198]The Board also wrote to Mr Kerr (page 2014) to confirm that in circumstances where he was not seeking re-appointment to the Board, there was no formal decision for the Board to make. The Board acknowledged that whilst there were some failings on his part (as identified in the investigation report) for which he accepted responsibility, it was clear that at all times his intention was to act in the best interests of the College. Press interest[199]There was significant Press interest in the suspension of the claimants and, in particular, the Azets investigation. The respondent adopted the position of not actively engaging with the Press. The only statement made by the respondent was to confirm the suspension of Ms McKechnie and Mr Keegan and the fact Mr Kerr had stepped aside, to allow an investigation to take place. There was a follow up statement to confirm the dismissal of the claimants. Credibility and notes on the evidence[200]Ms McKechnie’s case was, principally, that there had been an orchestrated campaign to remove her from post. She believed Mr Kerr had plotted against her to remove her from the College: she asserted he had solicited complaints from the five complainants, arranged financial backing for his plan and sought to suspend her pending an investigation. Ms McKechnie, in support of her position, relied on the timing of the complaints and the Azets investigation.[201]Ms McKechnie suggested that Mr Kerr would have been aware how damaging the prospect of suspension would have been to her, and he hoped the threat of suspension would have been sufficient to make her leave. It was further alleged that Mr Kerr did this because he had not wanted the Azets investigation to take place and he did not like Ms McKechnie raising with him the allegations connected to that investigation. In submissions, it was further suggested that Mr Kerr did not like senior staff, such as Mr Martin, falling within the cross hairs of any investigation and also that he had not liked the efforts of Ms McKechnie to improve governance in the College.[202]The tribunal preferred the evidence of Mr Kerr and the respondent’s witnesses regarding the claimant’s principal position and we found as a matter of fact that Mr Kerr had not solicited complaints, but that he had been approached by the individuals who shared with him their complaints and concerns regarding Ms McKechnie. Further, the tribunal preferred Mr Kerr’s evidence that rather than trying to achieve the suspension of the claimant, he was seeking to put the matter of the complaints in the hands of the Board and have them decide how best to deal with it. Mr Kerr did not want to deal with this in an individual capacity: he wanted the Board to make the decision.[203]The tribunal did not accept Ms McKechnie’s evidence that Mr Kerr had not wanted the Azets investigation to proceed, or that he had not liked senior staff falling within the cross hairs of the investigation or that he had not liked Ms McKechnie’s efforts to improve governance at the College. The tribunal noted there was no dispute regarding the fact it was Mr Kerr and Ms Glen who agreed to the Azets investigation being instructed by Ms McKechnie, and we also accepted Mr Hutchinson’s evidence that in instructing that investigation, Ms McKechnie had the full support of the Board.[204]Ms McKechnie relied on Mr Kerr’s email of 1 February (see below) as proof that he sought to discourage her from instructing the Azets investigation, but the tribunal found her interpretation of that email to be unreasonable in circumstances where it did not say what she alleged. Further, although the tribunal noted Mr Kerr had made a suggestion regarding a termination payment for Ms Martin, and had contacted Ms McKechnie regarding a pension issue in respect of Mr Martin, the tribunal did not consider this a sufficient basis for finding, as the claimant suggested, that Mr Kerr had some sort of special relationship with the Martins, or did not like senior staff falling within the cross hairs of the investigation. There was no evidence of any relationship with the Martins other than a professional work relationship.[205]The tribunal did not, for several reasons, find Ms McKechnie to be an entirely credible or reliable witness. Ms McKechnie’s views and conclusions are absolute in nature: there is no room for, or possibility of, any other view or interpretation of events. For example, Ms McKechnie gave evidence that Mr Kerr had tried to dissuade her from having the Azets investigation and in support of that position Ms McKechnie relied on Mr Kerr’s email of 1 February 2021 (page 2608). The terms of that email were as follows: “I am concerned to a degree by the update report as we are about to widen the awareness of the issues and I am also conscious that it states that we are dealing with “various allegations”. We need to be clear what the “various allegations” are and the findings of our investigations to date which predicate the forensic audit. As I understand it and I am open to correction the accusation of financial impropriety regarding consumable is unfounded following investigation. As I understand it and I am open to correction the issues of the assessor contract was also unfounded following investigation. As I understand it and I am open to correction the wider concerns re credit card fraud were also unfounded following investigation. The issue of the culture remains unsubstantiated and is with HR, as I understand it, and the individuals despite saying they have evidence have as yet not provided such or taken the matters any further. Can I therefore be clear regarding the number of allegations we are concerning ourselves with, is it the case that we have concerns re timetabling and resulting which are clearly matters which need resolved, can you confirm to me the various issues which were discussed with Azets for the scope of the audit. With regard to the Board I am content that a report is provided which indicates that we are having a forensic investigation but we would need to be very conscious of the wording. ….. My fear is that we potentially undermining confidence in the college with external parties SFC and NCL and would welcome a discussion on this matter and if we do alert then I would wish to know what form that alert would take ….”[206]The tribunal, in considering Ms McKechnie’s position regarding this email, had regard to the fact that(i) there had already been an internal investigation which concluded certain allegations were unfounded;(ii) Mr Kerr and Ms Glen, Chair of the Audit and Risk Committee, approved the forensic Azets investigation;(iii) Mr Kerr did not know who the complainers were and had not been provided with copies of their complaints or the “evidence” which they allegedly held and(iv) there was no dispute regarding the fact that given the nature of the complaints/allegations, care was required in the handling of those matters.[207]Ms McKechnie’s representative, in his submission, suggested Mr Kerr had used a “rhetorical technique known as the law of three” to reinforce the point he was making. The submission regarding the nature of the technique may or may not be correct; however, when considering the email and the evidence, it appeared clear to the tribunal that the point being made by Mr Kerr was that some concerns appeared to have been addressed by the investigation which had taken place, and he was seeking clarity on the scope of the forensic investigation. The tribunal did not, in the context of the evidence and the fact there had already been an internal investigation, consider that position to be unreasonable. Further, the tribunal concluded there was no reasonable basis for Ms McKechnie’s interpretation of that email as seeking to dissuade her from proceeding with the Azets investigation. There was nothing in the language of the email which suggested Mr Kerr wanted to discourage Ms McKechnie from commencing the investigation. This was supported by the fact Mr Kerr and Ms Glen, Chair of the Audit and Risk committee, approved the Azets investigation and Mr Hutchinson told the tribunal (and was not challenged on this) that the Azets investigation had had the “full support of the Board”.[208]A further example, was Ms McKechnie’s position that Mr Kerr had sought to “compel” her to make a settlement payment to Mrs Martin. This is referred to in the letter of the 22nd June 2021 to the SFC, where Ms McKechnie stated “he [Mr Kerr] sought to insist that I offer a financial settlement”. There was no dispute regarding the fact Mr Kerr did speak to Ms McKechnie about Ms Martin and that he did suggest that in circumstances where Ms Martin was unlikely to return before her sick pay was exhausted, Ms McKechnie may wish to consider a settlement payment for Ms Martin, and a fresh start with a new Personal Assistant. This suggestion was made during a conversation between Mr Kerr and Ms McKechnie and the tribunal accepted Mr Kerr left it with Ms McKechnie to consider.[209]There was also reference to Mr Kerr contacting Ms McKechnie regarding Mr Martin’s pension position. There was no dispute regarding the fact Mr Martin contacted Mr Kerr regarding his pension and Mr Kerr emailed Ms McKechnie about this on 20 January 2021 (page 2599). Mr Kerr’s email confirmed he had spoken with Mr Martin and that he had advised him he did not wish to go into the fine detail. The email confirmed that Mr Martin had expressed the view that, due to no-one’s fault, he had found himself unexpectedly financially disadvantaged in relation to his pension. Mr Kerr confirmed Mr Martin had been seeking a number of solutions with the College and hoped a fair solution could be found given the fact the pay rises which had caused the issue, arose from an historic undervaluation of his role which was corrected by the Remuneration Committee, but which had an unintended pension consequence for him and his fellow Associate Principals.[210]Ms McKechnie responded to say this was an operational matter for the College and so she had copied it to Mr McIntosh who was dealing with it.[211]Ms McKechnie told the tribunal that she felt Mr Kerr was obliging her to incur expenditure which was inappropriate.[212]The tribunal not only preferred Mr Kerr’s evidence regarding these matters, but concluded there was no reasonable basis for Ms McKechnie to adopt the position/interpretation which she did. We noted it was suggested to Ms McKechnie in cross examination that there was nothing in what had been said, or in the emails, regarding “compel”. Ms McKechnie agreed but stated “I interpreted this as being coercive”. This illustrates the absolute nature of Ms McKechnie’s evidence: she interpreted the phone call and email as being coercive, therefore that is what they were and that is how she portrayed them without reference to what had actually happened or what had actually been said.[213]We should add that in relation to the pension issue, we considered Ms McKechnie’s position was further undermined by the fact she told the tribunal that the pension issue was “a legal issue and the college could not intervene. Plus the College was no longer his employer and so it was no longer an issue for them.” If that evidence was correct, then there could have been no coercion for the College to make payment because it was no longer a matter which the College could resolve.[214]The tribunal also found Ms McKechnie’s credibility was impacted by the fact she, on many occasions, had to be reminded to answer the questions put to her in cross examination, rather than rehearse what she wanted to tell the tribunal. In addition to this, Ms McKechnie held to her position even when it was apparent that position was not correct. For example, Ms McKechnie maintained that she had not ever used the term Interim Board Secretary to describe Mr Keegan’s role even when referred to her letter to Mr Smith on 15 October 2021 (page 808) when she had used this exact term.[215]Ms McKechnie’s credibility was further impacted by the position she took regarding the constitutional documents and scheme of delegation and the College’s internal policies. There was no dispute regarding the fact there was a conflict between the scheme of delegation and the internal policies in terms of suspension and the disciplinary process to apply. Ms McKechnie was insistent that the internal policies should have applied when dealing with her case. She was cross examined regarding this matter and whilst she accepted the Board must follow the scheme of delegation and the constitution and that certain matters were reserved just to the Board, she maintained the opposite, that is, that the internal policies should have applied and that suspension was a matter for the Head of HR, even though that conflicted with the scheme of delegation and the constitution. It was suggested to the claimant that she knew, or ought reasonably to have known, that in making this statement in her various letters she deliberately mis-stated the position to suit her purposes. The claimant denied this and asserted she did not know the scheme of delegation and constitution took precedence over the internal policies and this was something about which she would have required to take legal advice.[216]The conflict between the scheme of delegation and constitution and the internal policies is dealt with below, however it was the claimant’s position regarding this matter which we considered impacted on her credibility. We acknowledged Ms McKechnie could not be expected to give a legal view regarding the issue, but she was very well placed to give a view based on her knowledge and experience. We say that because Ms McKechnie was described by her own representative as a “governance heavyweight”: she had many years of experience in the field of further and higher education and governance and was familiar with constitutional documents and the applicable legislation. The tribunal could not, against this background, accept Ms McKechnie’s position which appeared to be that notwithstanding the terms of the Constitution and Scheme of Delegation, which she accepted the Board must follow, in this case (and without explanation) the internal policies should apply.[217]It appeared to this tribunal that Ms McKechnie was endeavouring to face both ways on this issue: by that we mean that whilst she was prepared to accept the Constitution and Scheme of Delegation had to be followed, and whilst she accepted those documents reserved certain matters to the Board, she sought to argue something entirely different. It further appeared to this tribunal that Ms McKechnie sought to argue that the internal policies should apply because she believed they were to her advantage. This conclusion was supported by the fact that Ms McKechnie, notwithstanding she recognised that following the policy would have put Mr McIntosh in a conflicted position because he was subordinate to her, said she believed that if policy had been followed, then “we would not be here”.[218]These factors, individually and cumulatively, impacted on the credibility and reliability of Ms McKechnie’s evidence, and led the tribunal to treat her evidence with some caution. Mr Gary McIntosh[219]Mr McIntosh appeared as a witness for Ms McKechnie. The tribunal found Mr McIntosh was not a credible or reliable witness principally because Mr McIntosh was selective in what he chose to remember. This was illustrated by the fact that when faced with a question he did not wish to answer, his standard response was that he could not remember. This contrasted sharply with his recollection of events he wished to talk about. For example, Ms McKechnie wanted contact with her to be via Mr McIntosh. Mr Hutchinson accordingly emailed Mr McIntosh on 20 December 2022 regarding the disciplinary hearing. Mr McIntosh, when questioned about this email, could not remember if he had sent it on to Ms McKechnie. Mr McIntosh offered three possibilities for why he may not have sent it, but when challenged about each of these, he had to accept that what he had said was not correct.[220]Mr McIntosh’s evidence regarding Mr Keegan’s contract lacked credibility because he could offer no real explanation why the only contract issued to Mr Keegan had been signed on the day it was due to expire (14 June 2021).[221]There was a dispute between the evidence of Mr Kerr and Mr McIntosh regarding the meeting and discussion which took place at the Strathaven Hotel. The tribunal, having regard to the evidence and the emails exchanged at the time, preferred the evidence of Mr Kerr regarding this matter and accepted that whilst Mr Kerr had initially thought a way forward had been agreed with Mr McIntosh, there was a change of position by Mr McIntosh after the meeting at the Strathaven Hotel, following which Mr Kerr lost confidence in Mr McIntosh’s advice and support. Mr Keegan[222]The tribunal found Mr Keegan to be a not entirely credible or reliable witness. Mr Keegan had to be reminded on several occasions to listen to and answer the questions being put rather than continuing with the narrative he wished to present. Mr Keegan often challenged the relevance of questions or replied to a question with “what difference does that make?”. There were also aspects of Mr Keegan’s evidence which were less than candid. For example, Mr Keegan claimed that he did not know the scheme of delegation and/or constitutional documents took precedence over the College’s internal policies. The tribunal acknowledged Mr Keegan could not be expected to give a legal view on the issue, but he was being asked these questions based on his considerable experience in further education and, in particular, governance. Mr Keegan’s response raised a question mark in the mind of the tribunal whether Mr Keegan maintained that position because he knew that if he did not, it would seriously undermine Ms McKechnie’s case and his own actions in relation to the email he sent to the Board on 24 August 2021.[223]The tribunal also found Mr Keegan’s evidence regarding the right to suspend was contradictory. He accepted the Board had the right to suspend, but also claimed that Mr McIntosh’s agreement was needed. We considered that on any reading of the documents, that position could not be right and it raised a question regarding credibility and why Mr Keegan had adopted that position.[224]Mr Keegan was a governance professional who had initially been held in high regard by his colleagues. There was no dispute that he had been left to get on with the issues which required to be addressed (for example, recruitment of new Board members) and had made good progress. Mr Keegan very clearly had no time for Mr Kerr: there was an arrogance to Mr Keegan because of a perceived superior knowledge regarding governance and he did not like to be challenged.[225]Mr Keegan discovered Ms Donnelly’s application for the role of Principal in a box of papers. Mr Keegan referred to this in an email to the Board (24 August 2021): this was the first time this matter had ever been raised and it caused Ms Donnelly to respond raising concerns about GDPR. Mr Keegan followed this up with another email to the whole Board. Mr Keegan was asked, in cross examination, if he had spoken with Ms Donnelly prior to his emails in order to check facts with her. Mr Keegan did not want to answer that question: he was evasive; he defended what he had done before ultimately having to concede that he had not spoken to Ms Donnelly to check any facts before, effectively, outing her to the Board.[226]The tribunal considered the fact Mr Keegan acted in this way and his subsequent response, or lack thereof, to the questions asked in cross examination, impacted on Mr Keegan’s credibility and highlighted (as he accepted) that his trust in the Board had broken down. It also undermined Mr Keegan’s position that he, Ms McKechnie and Mr McIntosh were not working together in support of each other. The reason why Mr Keegan raised the issue regarding Ms Donnelly’s application was because he knew there was going to be a proposal that she play a part in the disciplinary process, and he thought he could torpedo this. We inferred from this that Mr Keegan deliberately did not approach Ms Donnelly to check the facts: he wanted to make the point and strike down what was being proposed. Mr McCrossan[227]Mr McCrossan’s evidence was short and did not add to the proceedings. Mr McCrossan criticised the way in which Ms McCormick had conducted her investigation. This was based on his attendance at interviews with Mr Keegan. However, Mr McCrossan had not read the investigation report and his evidence was undermined by this. The respondent’s witnesses Mr Kerr[228]The tribunal found Mr Kerr to be a credible and reliable witness. Mr Kerr acknowledged that he had not always got things right. He believed Ms McKechnie had not wanted the complaints to be investigated and that she had deliberately tried to obstruct and delay an investigation.[229]Mr Kerr faced considerable challenge in cross examination where it was suggested that he solicited complaints against Ms McKechnie, got the SFC to “bankroll” him, acted in a covert manner in obtaining legal advice, plotted to remove her from post, promised the SFC a “quick kill” and tried on a number of occasions (referred to as Plan A, Plan B and Plan C) to achieve her suspension. The tribunal preferred the evidence of Mr Kerr regarding these matters. We acknowledged Mr Kerr did not always get things right (for example, convening a Board meeting but excluding certain members) but fundamentally we accepted his evidence that he had received the complaints and what he was trying to do was contain the issue until such time as he could get legal advice regarding how to proceed, who had authority to do what and take it to the Board so a decision could be made regarding what they wanted to do with the complaints. We accepted, crucially, that this was not a matter in which Mr Kerr wanted to act by himself: he wanted the Board to deal with it.[230]Mr Kerr impressed the tribunal with his candid admission that he did not discount the possibility that the original complainants had conspired, or that they may have had an ulterior motive in complaining. Mr Kerr told the tribunal that those would be matters for whoever carried out the investigation: they were not matters which had a bearing on whether those complaints should be investigated.[231]Mr Kerr had a practice of making a note following a phone call or meeting. Ms Bowerman commented that during the investigation Mr Kerr would seek clarity on the next issues to be addressed and would then attend the meeting with all of the relevant documents and notes. The fact Mr Kerr operated in this way was clear at the tribunal when, on many occasions, Mr Kerr would answer a question but state there was an email or note to support what he had said: and (if it could be found amongst the vast number of documents produced in this case) this was so.[232]The tribunal accepted Mr Kerr’s evidence that there had been no “plotting” or conspiracy to remove Ms McKechnie from post. Mr Baverstock[233]The tribunal found Mr Baverstock to be credible and reliable witness who gave his evidence in a straightforward manner. Mr Baverstock provided a comprehensive overview of what happened in this case from the time he became involved, together with his impression of why certain things had happened. He answered all of the questions put to him very fairly, making concessions or acknowledgements where appropriate.[234]Mr Baverstock told the tribunal that when he was appointed he found the relationship between Mr Kerr and Mr Keegan as being “the complete opposite” to what it should be like, and that it got worse. Mr Baverstock became the conduit for information because communications between Mr Kerr and Mr Keegan were confrontational and became non-existent. He also described the relationship between Mr Kerr and Ms McKechnie as being “very poor, almost confrontational” and that it got worse. He confirmed that he had “no impression” Mr Kerr was conspiring to remove Ms McKechnie: in fact what he saw were her efforts to undermine Mr Kerr.[235]Mr Baverstock was asked about Mr Keegan’s interjection regarding Mr McDowall and the conflict of interest point: he described the interjection as “shocking, disrespectful and designed to embarrass Mr McDowall”. This, and, for example the redaction of the final proposal in the Camm report, had made him question why the claimants had taken certain actions.[236]Mr Baverstock told the tribunal that in the circumstances of this case, the reference in the respondent’s Disciplinary policy to the Head of HR having authority to suspend the Principal, had not been appropriate. He explained the reason for this was because the Head of HR was subordinate to the Principal and this did not sit with the governing principles, particularly where the Board was responsible for the removal of the Principal. Mr Smith[237]The tribunal also found Mr Smith to be a credible and reliable witness. He gave his evidence in a straightforward and measured manner, did not shy away from the difficult points and made concessions where appropriate.[238]Mr Smith described Ms McKechnie as a “first class candidate” for the post of Principal. However, in his role as Chair of the RSB, he had expected Ms McKechnie and Professor Moore (NCL) to work together, but saw on occasion that Ms McKechnie was “slightly disrespectful” towards Professor Moore and spoke down to him.[239]Mr Smith told the tribunal that there had been no “war chest” for Mr Kerr, and the issue of dismissal had not been pre-determined. He had not seen the letters (protected disclosures) sent by either Ms McKechnie or Mr Keegan, unless they were sent to him, and he had not been aware of Ms McKechnie contacting others for support. He denied the Board’s motivation for dismissal was because of the letters which had been sent, and added that it had never been discussed.[240]Mr Smith had not known of Ms McKechnie’s letter of 22 June 2021 to the SFC at the time. He acknowledged that when he became aware she had written to the SFC, he had been “irritated” because(i) she ought to have raised it with the RSB first;(ii) it caused delay in progressing the complaints which had been raised with Mr Kerr and(iii) he considered the SFC missed an opportunity to investigate all matters (the complaints made to Mr Kerr and the issues raised by Ms McKechnie). Mr Hutchinson[241]The tribunal found Mr Hutchinson to be a credible and reliable witness. Mr Hutchinson had been mobilised in April 2020 to oversee covid testing units. This meant he was absent from his employment and duties as a Board member for six months. He returned in or about October 2020. Mr Hutchinson was able to give an insight into how Ms McKechnie’s appointment was settling in: he told the tribunal that on his return he could sense the relationship between the Board and the Executive was not good and particularly between Mr Kerr and Ms McKechnie. He confirmed Mr Kerr had, at that time, told him staff had relayed concerns to him.[242]Mr Hutchinson described that Ms McKechnie’s approach brought increasing conflict with Mr Kerr, which led to an ever increasing number of emails and then complaints. He told the tribunal there had been “a noticeable change in pace for complaints and counter-complaints coming in” and the Board had wanted to hand over all of the complaints to an investigator to unpick.[243]Mr Hutchinson took over as Chair of the Board in November 2021 when Mr Kerr stood down. By that time the actions, and correspondence, of Mr Hutchinson, and the Board, were based on the legal advice received.[244]Mr Hutchinson was a straightforward witness and where there were issues, for example the fact he had complained about Mr Keegan, but was a member of the Board that took the decision to dismiss, he was able to respond and explain why this had been considered reasonable. Ms McCormick[245]The tribunal found Ms McCormick to be a credible and reliable witness. Ms McCormick was robustly challenged regarding the approach she had taken to the investigation. The tribunal found Ms McCormick responded well to all questions asked of her and her explanations for carrying out the investigation in the manner she did, were clear and reasoned. Ms Bowerman[246]The tribunal found Ms Bowerman to be a credible and reliable witness. She was challenged about the conclusions she made regarding the claimants and whether that had been reasonable in circumstances where she was not tasked with investigating the claimants. Ms Bowerman was very calm, clear and straightforward in giving her evidence and in dealing with cross examination questions. Submissions[247]The representatives each presented a written submission which they spoke to. A very brief summary of the submission points is set out below, with the submission points being addressed at length in the section entitled Discussion and Decision. Respondent’s submissions[248]Mr Maclean made a number of general comments at the start of his submission, one of which was that a significant focus of the claimants’ evidence had been on the actions of Mr Kerr; however, it was important to remember that Mr Kerr did not suspend the claimants, nor did he dismiss them. Those decisions were taken by the respondent independently of Mr Kerr in circumstances where Ms McKechnie and Mr Keegan accepted things had moved on from the time when Mr Kerr sought to have a discussion about suspending Ms McKechnie in the summer of 2021. The respondent did not accept the majority of the criticisms made of Mr Kerr, but it acknowledged the conclusions of Ms Bowerman that there were aspects of his involvement which he got wrong. Those criticisms, however, did not excuse the actions and behaviours of the claimants. Two extremely thorough and independent investigations reached the same conclusion, namely that the main blame for the governance failings lay at the door of the claimants. Mr Maclean invited the tribunal to find that it was reasonable for the respondent to rely on those findings in support of their decision to dismiss.[249]Mr Maclean invited the tribunal to accept and prefer the evidence of the respondent’s witnesses whom he described as giving a straightforward and reliable account of events. Furthermore, they were not evasive in answering questions and made concessions when the factual position required that without seeking to paint a gloss on those facts to suit the respondent’s case.[250]Mr Maclean submitted Ms McKechnie’s evidence was neither credible nor reliable and she was often evasive in answering questions and had to be reminded to answer the question a number of time. Her evidence lacked credibility: for example, Ms McKechnie alleged Mr Kerr sought to “compel” her to make a substantial payment to Mr Martin’s pension pot, but when one considered the email sent by Mr Kerr to Ms McKechnie regarding this matter, there was nothing in it which could reasonably be considered as “compelling”. Ms McKechnie alleged Mr Kerr tried to “force” her to incur expenditure by making a settlement payment to Ms Martin. The reality of the situation was that this was nothing more than a suggestion and when Ms McKechnie rejected it, it went no further. A further example was when Ms McKechnie alleged Mr Kerr tried to block the Azets investigation. However, when the email of 1 February 2021 sent by Mr Kerr to Ms McKechnie was considered, there was nothing in the email which could be construed to support Ms McKechnie’s interpretation. Lastly, Ms McKechnie categorically stated she did not ever describe the role filled by Mr Keegan as Interim Board Secretary. This was not true given she used this exact term in a paper to Mr Kerr on 10 February 2021 (page 2640) and in a letter to Mr Smith on 15 October 2021 (page 808).[251]Mr Maclean also submitted Ms McKechnie was not being truthful when she claimed not to know that the scheme of delegation or the constitutional document of the College, generally, took precedence over the College’s internal policies. In support of that position Mr Maclean pointed to Ms McKechnie’s repeated complaints regarding governance failings at the College in which she referred to the constitutional documents and the legislation, and he also referred to her extensive career in essentially being the lead civil servant for FE/HE in Scotland.[252]Mr Maclean further submitted that care had to be taken with Ms McKechnie’s evidence because she had a tendency to state matters as absolute facts without checking the veracity of the statements she was making. For example, Ms McKechnie stated on more than 10 occasions in a document submitted to the SFC, that Board member Mr McDowall was in breach of policy and had a clear conflict of interest when suggesting a settlement agreement for Ms Martin because she alleged the Martin’s son worked for Anderson Strathern. This was a serious allegation to make and to make it to the SFC without checking that it was factually correct was extremely concerning. The truth of the matter, as Mr McDowall told the investigators, was that the Martin’s son was a summer student at Anderson Strathern for 5 days in 2016.[253]Mr Maclean also submitted that Mr McIntosh’s evidence was neither credible nor reliable and during cross examination he frequently chose not to remember key pieces of information. For example, he claimed not to remember if he sent on the email from Mr Hutchinson to Ms McKechnie on 20 December 2022 and gave a number of erroneous excuses why it had not been sent on. There were also issues of credibility regarding Mr Keegan’s contract which was issued on the day it expired for reasons Mr McIntosh struggled to explain. It was submitted that it was clear from the facts that Mr McIntosh and Ms McKechnie extended Mr Keegan’s contract without the agreement of Mr Kerr and that they concealed it from Mr Kerr, misleading him to believe that a decision on the extension was still required.[254]There was a conflict between the evidence of Mr McIntosh and Mr Kerr regarding the discussion at the Strathaven Hotel. Mr Maclean submitted Mr Kerr’s account was the most consistent with the documentary evidence at the time and also before and after, and he invited the tribunal to prefer Mr Kerr’s account.[255]Mr Maclean described Mr Keegan’s answers in cross examination as being an attempt to further his argument rather than answering questions truthfully. He shaped answers to suit a particular narrative, had to be reminded to listen to and answer the questions being put to him, and his evidence was not always entirely candid. For example, he also claimed not to know that the scheme of delegation or constitutional documents generally, took precedence over the College’s internal policies. If this was true, it would seriously call into question his competence in the role of Interim Clerk to the Board. It was submitted that given Mr Keegan’s credentials and his competence in governance matters, it was unlikely he did not understand something this basic, and that in fact he was not being truthful because he knew that accepting this would seriously undermine Ms McKechnie’s position and his own actions.[256]Mr Keegan’s position on the right to suspend was contradictory and he changed his position when he realised it did not suit his narrative. His position that he, Mr McIntosh and Ms McKechnie were not working together in support of each other lacked any credibility whatsoever particularly in light of his email exchange with Ms McKechnie and Mr McIntosh on 26 October 2021 (page 3409).[257]Mr Crossan’s evidence regarding criticisms of the investigation was undermined by the fact he had not read the investigation reports.[258]Mr Maclean addressed the tribunal at length regarding the disclosures said to have been made by each of the claimants, and whilst there was no dispute regarding the fact the emails/letters had been sent, Mr Maclean invited the tribunal to find that in fact any disclosures made were not protected[259]Mr Maclean also raised an issue regarding timebar in respect of part of Mr Keegan’s claim that he had been subjected to detriment because of having made a protected disclosure/s. It was further submitted that if there had been detrimental treatment of Mr Keegan as alleged, the reason for that treatment was not because of him having made a protected disclosure/s.[260]Mr Maclean next invited the tribunal to dismiss the claims that the claimants had been automatically unfairly dismissed because of having made a protected disclosure or disclosures. He also invited the tribunal to dismiss Ms McKechnie’s complaint of direct sex harassment.[261]Lastly, Mr Maclean invited the tribunal to dismiss Ms McKechnie’s complaint of unfair dismissal. Claimant – Ms McKechnie’s submissions[262]Mr Briggs referred to the evidence which showed that Mr Kerr was in possession of legal advice on 27 May 2021, which told him he had the power to start a disciplinary investigation. He had the five complaints and an external investigator in place ready to take the matter forward. Six months later Mr Kerr had not started the investigation. Mr Briggs invited the tribunal to ask why? He answered that question by submitting that investigating the complaints was never Mr Kerr’s goal: his goal was suspending the claimant. Mr Kerr bungled four attempts to suspend the claimant and by the time the SFC and the Board realised they had been duped by Mr Kerr, it was too late because they were “up to their elbows in it”. Instead, the SFC bankrolled Ms McCormick’s absurdly wide investigation in the hope she would find something on the claimant which could plausibly justify dismissal.[263]Mr Briggs, in relation to the question of the fairness of the dismissal, referred the tribunal to the case of Royal Mail v Jhuti 2019 EWCA Civ 1632 and submitted this was a case where the reasons of a person other than the dismissing officer could be treated as the reason for dismissal (the person other than the dismissing officer being Mr Kerr). It was submitted that Mr Kerr decided the claimant was to be dismissed and so he solicited complaints from the five individuals; he approached Mr Smith and the SFC to arrange financial backing for his plan and third, he intended to suspend the claimant pending an investigation. Mr Briggs submitted that the real reason Mr Kerr wanted to dismiss the claimant was because there was a culture clash between them and he did not like the claimant bringing the issues which led to the Azets investigation to him: moreover he did not like senior staff such as Mr Martin falling within the crosshairs of any investigation. These disclosures by the claimant (the first protected disclosures) were the reason Mr Kerr sought to dismiss.[264]Mr Briggs submitted the dismissal had been automatically unfair in circumstances where the making of the protected disclosures had been the reason for the dismissal.[265]Alternatively, it was submitted the dismissal had been unfair and in this respect Mr Briggs referred to the investigation and the claimant not ever being given any allegations, or specification, to respond to. The “themes” were not allegations and were in a format which was almost impossible to respond to. The claimant was last to be interviewed and it was submitted she was viewed more as an annoyance. Ms McCormick sought to lay the blame of the entire falling out at the door of the claimant, despite the fact that any fair reading of the narrative would conclude that the claimant was as much in the dark about what she stood accused of as everything else.[266]Mr Briggs submitted that the reason why Ms McCormick, Ms Bowerman and Mr Hutchinson all arrived at such manifestly and obviously incorrect conclusions is because they all began with their conclusions and worked backwards, and because they artificially ascribed perfect knowledge to the claimant at all time throughout the timeline. In any event, there was a predetermined outcome.[267]It was submitted that Mr Hutchinson, had not only expressed a negative view regarding the claimant’s suitability for the position of Principal, he had also drafted a paper calling for the suspension. His chairing of the Board which took the decision to dismiss was inappropriate. Further, there was no right to appeal against the decision to dismiss.[268]Finally, Mr Briggs invited the tribunal to find the claimant had been discriminated against because of her sex. In support of this claim, Mr Briggs referred to the ten themes and submitted they mapped almost perfectly onto the common tropes associated with the “difficult woman” stereotype. Furthermore, complaints against the claimant’s male predecessor had been handled in accordance with the college’s policies and procedures and had not resulted in dismissal.[269]These summary points are developed below in the section entitled Discussion and Decision. Claimant – Mr Keegan’s submissions[270]Mr Byrom submitted the three alleged detriments were a continuing act in terms of section 48(3)(a) Employment Rights Act, and therefore the claim in respect of those acts had been presented in time.[271]Mr Byrom referred to the disclosures said to have been made by the claimant and made submissions regarding why those disclosures were said to be protected disclosures. He then took each of the alleged detriments and explained which protected disclosure/s were said to have caused the detriment. Mr Byrom then made submissions regarding the claim of automatically unfair dismissal because of having made protected disclosure/s and, should the tribunal not accept the decision-makers knew of the whistleblowing complaints, he adopted an esto position based on the Jhuti case. Discussion and Decision Ms McKechnie’s claim – List of Issues[272]An agreed list of issues was produced at page 234 and set out the following points: “1/. Protected Disclosures[273]The claimant alleged she made disclosures of the following information:a. by verbal communications with Mr Kerr on 8, 15, 22 and 29 September 2020 and by email of 13 November 2020 to Mr Kerr, concerning current and historic theft of the respondent’s property and potential fraud occurring within the respondent’s time, premises and property to run private business as well as falsification of timetables, student numbers and student results, inappropriate granting of student fee waivers, and concerns that unqualified students were being granted gas/plumbing certifications without appropriate training or proving their competence (the first disclosure);b. on 22 June 2021 in a letter to the Scottish Funding Council (SFC) and Scottish Government, 13 September 2021 in a letter to the SFC and Scottish Government and a letter of 16th September to the respondent’s Interim Clerk to the Board, that Mr Kerr was discouraging the investigation of whistleblowing complaints and targeting a whistleblower, of breaches of governance, inappropriate personal financial gain for a board member, inappropriate use of and/or attempted use of and/or attempted use of the respondent’s funds and/or a failure to ensure the health and safety of employees (the second disclosure);c. on 15 July 2012 in a letter to the SFC, and 3 and 20 September 2021in correspondence to Mr Smith, Board member of the respondent and Chair of the RSB, safeguarding concerns with staff feeling threatened and unsafe, with a negative impact on their mental health and wellbeing (the third disclosure);d. in complaints to the Scottish Ministers, the SFC, the Commissioner for Ethical Standards in Public Life in Scotland and the Office of the Scottish Charity Regulator on 26 November 2021, the respondent’s failure to progress whistleblowing complaints and the discouraging of the investigation of whistleblowing complaints, inappropriate use of and/or attempted use of the respondent’s funds, inappropriate financial gain for a board member, and failure to ensure the health and safety of employees (the fourth disclosure) ande. in a complaint to Audit Scotland on 20 May 2022, the respondents alleged failure to progress whistleblowing complaints and targeting of a whistleblower, inappropriate use of and/or attempted use of its funds, inappropriate financial gain for a board member, safeguarding concerns regarding employees’ safety, the respondent’s alleged failure to ensure the health and safety of employees (the fifth disclosure). If the claimant did make disclosures of that information, did the disclosures tend to show: a. in relation to the first alleged disclosure, that a criminal offence had been committed, and/or a likely breach of the Board’s obligation to comply with its financial, legislative and governance obligations and/or that the health or safety of any individual was likely to be endangered; b. in relation to the second alleged disclosure, a likely concealment of a failure to deal with whistleblowing complaint, a likely breach of the Board’s obligation to comply with its financial, legislative and governance obligations and/or that the health or safety of any individual was likely to be endangered; c. in relation to the third alleged disclosure a likely breach of the legal duty to take reasonable steps to ensure a safe working environment for employees and/or that the health or safety of an individual was likely to be endangered; d. in relation to the fourth alleged disclosure a likely concealment of a failure to deal with whistleblowing complaints, a likely breach of the Board’s obligations to comply with its financial, legislative and governance obligations and/or that the health or safety of an individual was likely to be endangered, and e. in relation to the fifth alleged disclosure a likely concealment of a failure to deal with whistleblowing complaints, a likely breach of the Board’s obligations to comply with its financial, legislative and governance obligations and/or that the health or safety of any individual was likely to be endangered. If so, did this show one of the relevant failures set out in section 43B(1) (a) to (f) of the Employment Rights Act; In relation to each alleged disclosure, was it reasonable for the claimant to believe that was the case; In relation to each alleged disclosure, did the claimant believe that the disclosures were in the public interest; In relation to each alleged disclosure, was it reasonable for the claimant to believe this was the case; Did the claimant make the alleged disclosures to one of the categories of people listed in sections 43C to 43H of the Employment Rights Act. 2/ Automatic Unfair Dismissal (section 103A Employment Rights Act): was the reason or principal reason for the claimant’s dismissal the fact the claimant had made any of the alleged protected disclosures? 3/ Unfair Dismissal: was the reason for the claimant’s dismissal a potentially fair reason within the meaning of section 98(1) or (2) of the Employment Rights Act; and was the claimant’s dismissal for that reason, fair in all the circumstances in terms of section 98 Employment Rights Act? 4/ Sex Discrimination (section 13 Equality Act): did the respondent treat the claimant less favourably than it would treat others in not materially different circumstances because of the claimant’s sex by dismissing her. The complaint of automatically unfair dismissal for having made a protected disclosure, or disclosures (section 103A Employment Rights Act)[274]The tribunal firstly had regard to the relevant statutory provisions. Section 103A Employment Rights Act provides that an employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.[275]Section 43A of the Employment Rights Act provides that a “protected disclosure” means a qualifying disclosure as defined by section 43B, which is made by a worker in accordance with any of section 43C to 43H.[276]Section 43B provides that a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making it, is made in the public interest and tends to show one or more of the following:a. that a criminal offence has been committed, is being committed or is likely to be committed;b. that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject;c. that a miscarriage of justice has occurred, is occurring or is likely to occur;d. that the health or safety of any individual has been, is being or is likely to be endangered;e. that the environment has been, is being or is likely to be damaged; orf. that the information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.[277]Section 43C to 43H set out to whom a disclosure may be made and the circumstances in which it may be made. (No point was taken by the respondent regarding this issue).[278]The claimant’s position was that she had disclosed information which tended to show a criminal offence had been committed, is being committed or is likely to be committed (first alleged disclosure); that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject (all alleged disclosures) and that the health and safety of any individual has been, is being or is likely to be endangered (all alleged disclosures).[279]The respondent’s position was that the disclosures said to have been made by Ms McKechnie were not protected disclosures and, secondly, even if they were, Ms McKechnie was not dismissed because she had made protected[280]The tribunal had regard to the relevant case law regarding the making of a protected disclosure. We noted in the case of Blackbay Ventures Ltd v Gahir 2014 ICR 747 it was recommended that in “whistleblowing” cases the tribunal first identify the disclosures relied on by reference to the date and content, then identify the alleged failure or likely failure (each failure being separately identified), then address the basis on which the disclosure is said to be protected and qualifying. We considered the dates and content of the disclosures relied on and the alleged or likely failures have been identified above.[281]We next noted that in order for a disclosure to be a “protected disclosure”, it must satisfy three requirements:a. it must be a disclosure of information;b. it must be a “qualifying disclosure” (that is, one that in the reasonable belief of the worker making it, is made in the public interest and tends to show that one or more of the six relevant failures has occurred or is likely to occur) andc. it must be made in one of the six prescribed methods.[282]The EAT in the case of Cavendish Munro Professional Risks Management Ltd v Geduld 2010 ICR 325 drew a distinction between communicating “information” which is a disclosure of information and making an “allegation” which does not convey facts (which is not). This was refined in the case of Kilraine v London Borough of Wandsworth 2018 ICR 1850 where the Court of Appeal stated that “information” and “allegation” are not mutually exclusive categories of communication. It held that “information” in the context of section 43B is capable of covering statements which might also be characterised as allegations. The correct test to be adopted is whether the communication has “sufficient factual content and specificity such as to be capable of showing one of the matters listed in sub-section (1) …” (that is, capable of tending to show relevant wrongdoing within section 43B(1)).[283]The tribunal noted the respondent’s representative referred to the cases of Blitz v Vectone Group Holdings Ltd 2011 0253/10 and Parsons v Airplus International Ltd EAT 0111/17 in support of the position that it would be highly unlikely that asking for information will meet the test of conveying information.[284]The tribunal, having had regard to the relevant statutory provisions, the relevant case law and the parties’ submissions, next turned to consider whether any of the disclosures made by Ms McKechnie were protected disclosures. The first point for consideration was the respondent’s position that in none of the disclosures relied upon, was there a disclosure of information. Was there a disclosure of information[285]We had regard to the first disclosure said to have been made by Ms McKechnie (verbally to Mr Kerr on 8, 15 and 29 September 2020 and by email of 13 November 2020 page 2360). We noted from Mr Maclean’s submission that it was accepted that in September 2020 Ms McKechnie advised Mr Kerr that there were allegations of theft and fraud in the respondent’s Construction Faculty which were, at the time, being investigated internally. The respondent’s position was that what was disclosed to Mr Kerr were allegations and no information regarding those allegations was provided.[286]The tribunal, in considering that submission, had regard to the evidence it heard from Mr Kerr and Ms McKechnie. We noted that in her evidence in chief, Ms McKechnie simply stated that during September 2020 there were five complaints of bullying and intimidation from staff in the department which expanded into theft and fraud. Ms Beresford, Head of HR, told Ms McKechnie of the complaints and Ms McKechnie kept Mr Kerr appraised of this in the weekly Teams meeting. The tribunal noted the issue of Ms McKechnie keeping Mr Kerr appraised of this during the weekly Teams meetings was not put to Mr Kerr during cross examination.[287]Mr Kerr told the tribunal that he was informed that four anonymous complaints had been made and that there was video/documentary evidence to support them. He asked to see the evidence, but it was never received.[288]The tribunal concluded, based on the evidence before it, that there was insufficient evidence regarding the content of the discussions on 8, 15 and 29 September 2020 to allow us to conclude there had been a disclosure of information beyond stating the very broad and general nature of the allegations being made. We acknowledged there was information that it concerned the Construction Faculty and senior staff within that Faculty, but there was no information to suggest what had allegedly been going on, by whom or when. We concluded, for these reasons, that the disclosure lacked sufficient factual content and specificity such as to be capable of showing a criminal offence had been, was being or was likely to be, committed in terms of section 43B(1). We decided there was no verbal qualifying disclosure.[289]There was no dispute regarding the fact Ms McKechnie emailed Mr Kerr on 13 November 2020 (page 2360) and in that email Ms McKechnie referred to having “spoken several times recently about issues relating to behaviour and conduct and of potential fraud and theft on campus, which were being raised informally with the Head of HR and separately with me. The degree of complaints continues to escalate …. All of the complaints relate to one faculty; the behavioural issues are restricted to a very few senior colleagues; the allegations of fraud have now widened to include theft of materials, conducting private businesses on college time and using college materials, falsification of timetables, fabrication of classes and student numbers…. These are very serious allegations…”.[290]The tribunal concluded the claimant’s email of 13 November 2020 provided sufficient factual content of the potential fraud and theft on campus, such as to be capable of showing a criminal offence was likely to have been committed. We acknowledged Mr Kerr asked to see the evidence but this was not provided and in his email of 1 February 2020 to Ms McKechnie (page 2608) he referred to the need to be clear what the “various allegations” are; and stated “Can I therefore be clear regarding the number of allegations we are concerning ourselves with …” but we did not consider this request for clarity undermined the factual content of the information he had received.[291]The tribunal decided, for the reasons set out above, that in respect of the first alleged disclosure there was no disclosure of information in respect of the verbal disclosures, but there was a disclosure of information in the email of 13 November 2020.[292]The second disclosure said to have been made by Ms McKechnie was her letter of 22 June 2021 to the Scottish Funding Council (SFC) and the Scottish Government (page 482), 13 September 2021 in a letter to the SFC and Scottish Government and a letter of 16 September 2021 to the Mr Keegan. The claimant, in these letters, raised concerns regarding Mr Kerr: those concerns were listed in the claimant’s further particulars at page 220, and we have taken the information set out below from those particulars.[293]The claimant, in her letter of 22 June 2021 to Ms Watt at the SFC, raised concerns regarding Mr Kerr and alleged he was(a) seeking to discourage appropriate investigation into a suite of whistleblowing complaints;(b) does not take advice or action in relation to Board member conflict of interest;(c) continues to incur expenditure on behalf of the College without recourse to senior officers;(d) has written to me to encourage the College to incur expenditure in relation to the pension arrangements of that individual’s husband;(e) he incurred legal expenses without appropriate authority and from the company which employs the Chair of our HR committee and(f) he sought to insist that I offer a financial settlement.[294]In the letter of 13 September 2021 to the SFC and the Scottish Government the claimant raised the following points:(a) refusal by the Chair to take action in relation to the conflict of interest of Board members;(b) the incurring of expenditure inappropriately by Board members with their own company and sanctioned by the Chair. Allowing a Board member to take legal advice from his own company on behalf of the College, despite a clear conflict of professional and personal interest – not sharing the advice with the College, thereby creating a breach of trust and potential breach of client confidentiality;(c) the instruction of legal advice, not shared with the College in breach of the Code of Good Governance, the Scheme of Delegation and the Financial Memorandum;(d) the impact of the Chair’s behaviour and conduct on the senior team, including intimidating, bullying and undermining to the extent that this is now a safeguarding matter; (e the ambition to remove the Interim Clerk to the Board despite … the College policy on whistleblowing makes clear that members of staff must be protected against victimisation or dismissal for raising concerns; (f) ongoing breaches of the Financial Memorandum, including securing prior SFC approval for novel or contentious spend and (g) this will also require consideration of GDPR legislation as the College is actively considering complaints about mixed personal data breaches, given the Chair’s persistent breach of GDPR legislation.[295]The disclosures of information alleged by Ms McKechnie in the letter of 16 September 2021 to Mr Keegan related to the same above issues. It was alleged(a) significant impact on staff health and wellbeing, the impact of the Chair’s behaviour and conduct on the senior team, including intimidating, bullying and undermining;, refusal to take advice from staff and publicly articulating that he does not get good advice from the College; to impact negatively on the reputation of senior colleagues to the extent that is now a safeguarding matter;(b) the incurring of expenditure inappropriately by Board members with their own company and sanctioned by the Chair. Allowing a board member to instruct and receive legal advice from his own company on behalf of the College despite a clear conflict of professional and personal interest, and not sharing the advice with the College, thereby creating a breach of trust and a potential breach of client confidentiality between the College and its legal advisers;(c) seeking to undermine due process in relation to our procedures around response to whistleblowing complaints;(d) breach of the requirement to secure prior SFC/NCL approval for novel or contentious spend and(e) the instruction and funding of legal advice on behalf of the College but not shared with the College over a 10 month period.[296]The respondent’s representative submitted the disclosures of information alleged by Ms McKechnie in the above letters were allegations rather than disclosures of information and therefore did not amount to a protected disclosure. The tribunal, in considering this submission, referred to the useful illustration provided by the EAT in the Cavendish Munro case (above) where it was said that to say “health and safety requirements are not being complied with” is an example of an allegation, whereas saying “the wards of the hospital have not been cleaned for two weeks” is information. The first statement is so generally devoid of specific factual content that it could not be said to fall within the language of section 43B(1): this is to be contrasted with the statement which contained more specific factual content. The key point to take away from this case is that a statement which is general in nature and devoid of specific factual content cannot be said to be a disclosure of information tending to show a relevant failure.[297]The tribunal, in considering the claimant’s letter of 22 June 2021 to the SFC, noted reference to a meeting which had taken place and a letter from Ms Watt. There was no evidence regarding the nature of the meeting or what information may have been disclosed to Ms Watt at that meeting. We, accordingly, only had regard to the letter of the 22nd June. We noted Ms McKechnie referred to “issues of significant governance deficiencies” and referred to breaches of the Code of Good Governance, the Scheme of Delegation, Financial Memorandum, Board Member Code of Conduct and the College’s own policies and procedures.[298]The claimant’s first disclosure was that Mr Kerr was seeking to discourage appropriate investigation into a suite of whistleblowing complaints. The tribunal noted that Ms McKechnie subsequently referred in her letter to whistleblowing complaints and the fact “the most recent forensic investigation by our internal Auditors, instigated by me earlier this year, has identified 16 recommendations for improvement (copy attached for your information).” In light of the fact a forensic investigation had taken place, instigated by Ms McKechnie, it was very difficult, without more factual information and specificity, to view this as anything more than an allegation.[299]The second disclosure was that Mr Kerr did not take advice or action in relation to Board member conflict of interest. The tribunal considered there was insufficient factual content and specificity in this statement such as to be capable of showing one of the matters listed at section 43B(1). We reached the same conclusion regarding disclosures three, four and six: they were general statements devoid of specific factual content. We do not seek to suggest that the claimant was required to set out dates, times, amount of expenditure or the process to be followed to incur expenditure, but there is a balance between this and merely making the allegation as the claimant did in her letter. Further, in relation to disclosure six, it appeared this was simply a statement of fact: there was not even an allegation of wrongdoing.[300]The fifth disclosure was that Mr Kerr had incurred legal expenses without appropriate authority and from the company which employs the Chair of the HR committee. The tribunal considered there was sufficient factual information in this disclosure and we reached that conclusion because, from the information stated, it can be understood the type of expenditure which has been incurred, there is a suggestion there was no authority to incur the expenditure and there is a suggestion it may not have been appropriate to obtain the advice from the particular firm used.[301]The tribunal next considered the claimant’s letter of 13 September 2021 to the SFC and Scottish Government (page 489). The tribunal considered that points (a), (c), (e), (f) and (g) lacked sufficient factual content and specificity such as to be capable of showing one of the matters listed in section 43B(1). The tribunal was satisfied that points (b) and (d) did provide sufficient factual content to amount to a disclosure of information.[302]The tribunal next considered the claimant’s letter of 16 September 2021 (page 492) to Mr Keegan. The tribunal acknowledged the letter raised the same issues as set out above, but there was much more factual content in the letter and the letter was structured so the relevant legislation or Code was identified and then details of the alleged behaviours. This format meant there was not only factual content but also specificity. The tribunal concluded, for these reasons, that there was a disclosure of information in this letter in respect of points (a) to (e) as set out above.[303]The tribunal, in conclusion, decided there was a disclosure of information in the letter of 22 June 2021 to the SFC in respect of the fifth point; there was a disclosure of information in the letter of 13 September 2021 in respect of points (b) and (d) and there was a disclosure of information in the letter of 16 September 2021 in respect of the points raised.[304]The third disclosure said to have been made by the claimant was the letter of 15 July 2021 to the SFC (page 485) and the letters of 3 and 20 September 2021 to Mr Smith (page 488 and 495). The claimant, in the letter of 15 July 2021, raised the following concerns: “(a) in relation to sickness absence occasioned by stress at work related to one or more individuals outwith the College employ … to be advised that both the SFC and the SG have been aware of the stress at work for some time and have not taken action earlier to support the individual or the situation … Given the issues which I have previously raised with both you and SG which have resulted in the ongoing governance review, I can only assume that the matter of confidential concern with which Gary is struggling reaches in some way into these wider matters and (b) stress at work …. Including a diagnosis of severe anxiety and depression and also being on the brink of a breakdown … my illness is not caused by any employee/s but rather someone beyond the employment of the College”.[305]The tribunal considered point (a) to be vague and unspecific and it was difficult to understand whether the concern was about sickness absence occasioned by stress at work and/or the lack of action or support by the SFC and SG. The tribunal understood, in relation to point (b), that the claimant provided correspondence from the Head of HR, Mr McIntosh, in which this statement had been made. The reference to “someone beyond the employment of the College” was vague and unspecific. The tribunal concluded for these reasons that there was not a disclosure of information in points (a) and (b) of the letter of 15 July 2021.[306]The tribunal next considered the letters of 3 and 20 September 2021 to Mr Smith (page 488 and 495). In the letter of 3 September, the claimant stated “I am advised by the SFC to bring to your attention the significant safeguarding concerns here at the College, highlighted by the recently published SFC review report. The report describes staff feeling threatened and unsafe; the current situation having an impact on their mental health; some individuals being very profoundly impacted. The report describes the management style of the Chair as having reportedly serious impact on others… I look to you for immediate support operationally, should senior staff absent themselves from an unsafe working environment (as is the medical advice) or leave; and both legally and reputationally. This risk too is identified in the report.”[307]The respondent’s representative submitted this overstated the Camm report and, in any event, there was no information which suggested a breach of a legal obligation or what that legal obligation is.[308]The tribunal noted the reference in the letter to the Camm report and further noted this would be a document available to Mr Smith to read in conjunction with the claimant’s letter. The tribunal considered there is no requirement when making a disclosure to specify or suggest the legal obligation being breached. In any event we considered it clear, from the information provided, that the legal obligation is the obligation to provide a safe working environment. The tribunal concluded the letter disclosed sufficient factual and that there was a disclosure of information.[309]In the letter of 20 September (page 495) the claimant referred to her previous letter, reiterated what the report had described and provided an update in which she stated: “I write to advise of steps taken in the interim to offer protection to my staff. Staff will not engage with the Chair on a 121 basis, this will include the interim Clerk going forward (and has been my own position for some months now); the Head of HR will not attend the HR Committee meetings in the interim… all other health and wellbeing support packages are actively offered to any staff affected in the interim. Some staff have sought support and advice from their trade unions”.[310]The tribunal did not consider this letter to disclose information: it instead updated Mr Smith regarding steps Ms McKechnie had taken to offer protection to her staff. The tribunal concluded there was insufficient factual content and specificity such as to be capable of showing one of the matters listed in section 43B(1).[311]The tribunal concluded, with regard to the third disclosure, that there was no disclosure of information in the letter of 15 July to the SFC or the letter of 20 September to Mr Smith. The tribunal did conclude that the letter of 3 September to Mr Smith did disclose information.[312]The fourth disclosure said to have been made by the claimant was the letters of 26 November 2021 to the Scottish Ministers, the SFC, the Commissioner for Ethical Standards in Public Life in Scotland and the Office of the Scottish Charity Regulator (pages 496 – 613). The claimant sent a 54 page document (page 498) with her letters. The document set out the breaches and evidence and listed 17 issues.[313]The tribunal concluded that given the level of detail in the 54 page document, that there had been a disclosure of information.[314]The fifth disclosure said to have been made by the claimant was the letter of 20 May 2022 to Audit Scotland (page 615). The claimant, in that letter, stated “I write this communication under the terms of the Public Interest Disclosure Act 1998 … Please find attached, in strictest confidence, a full list of all the complaints which were either made by me or received by me from a number of staff … The comprehensive list which is attached covers formal grievances, formal whistleblowing complaints, formal safeguarding complaints.” The tribunal noted that although reference was made to a full list of the complaints being attached, there was no note on the letter to confirm what had actually been sent.[315]The tribunal concluded that this letter, read in conjunction with all of the complaints, disclosed information such as to be capable of showing one of the matters listed at section 43B(1). Was there a qualifying disclosure[316]The tribunal next asked whether, in respect of the points above where we have concluded there was a disclosure of information, there was a qualifying disclosure (that is, one that in the reasonable belief of the worker making it, is made in the public interest and tends to show that one or more of the six relevant failures has occurred or is likely to occur).[317]The tribunal concluded there was a disclosure of information in the claimant’s email of 13 September 2020 to Mr Kerr. We were satisfied the claimant had a reasonable belief that the information being disclosed tended to show a criminal offence was likely to occur, and that it was made in the public interest. We say that because there had been complaints regarding the faculty of construction, the internal investigation had been inconclusive but appeared to suggest current policies and procedures were lacking and there was sufficient concern to instruct a forensic examination of the evidence.[318]The tribunal concluded there had been a disclosure of information in the letter of 22 June to the SFC (the second disclosure) when the claimant stated “he [Mr Kerr] incurred legal expenses without appropriate authority and from the company which employs the Chair of our HR committee”. We further noted the claimant alleged this disclosure tended to show a person had failed, is failing or is likely to fail to comply with a legal obligation to which he is subject. The claimant (in her further particulars) made reference to “a Financial Memorandum which governed the relationship between the respondent and its Regional Body (the Lanarkshire Board) … which in turn was accountable to the SFC for the use of public funds provided to it by the SFC under legislation. The Lanarkshire Board must ensure that the respondent uses public funds in accordance with the legislation and the Code of Good Governance for Scotland’s Colleges. The claimant reasonably held the belief that her disclosures tended to show a misuse of public funds in breach of a legal obligation, specifically an obligation not to cause or attempt to cause a breach of the Scottish Public Finance Manual, Scheme of Delegation or the Financial Memorandum…”[319]The tribunal, in considering the claimant’s position and the respondent’s position which was that it was not reasonable to believe this was a breach of a legal obligation or could be thought to be so, had regard to the fact the claimant gave no evidence regarding these matters. The tribunal was not referred to the “legislation” said to be applicable and nor was it explained why the claimant believed the circumstances tended to show there had been a breach.[320]The tribunal had regard to the case of Korashi v Abertawe Bro Morganwe University Local Health Board 2012 IRLR 4 where it was stated that reasonableness involves applying an objective standard to the personal circumstances of the discloser and those with professional or insider knowledge will be held to a different standard than a layperson in respect of what it is reasonable for them to believe. Further, in Phoenix House Ltd v Stockman 2017 ICR 84 it was stated that on the facts believed to exist by the claimant, a judgment must be made first as to whether the belief was reasonable and second as to whether objectively, on the basis of those perceived facts, there was a reasonable belief in the truth of the complaints. Thus, the subjective element is that the claimant must believe the information disclosed tends to show one of the relevant failures and the objective element is that that belief must be reasonable.[321]The tribunal, having regard to these cases, concluded this was not a qualifying disclosure because the claimant’s belief that the information disclosed tended to show one of the relevant failures was not reasonable in circumstances where there was a lack of explanation and clarity.[322]The tribunal next considered its conclusion that the claimant had disclosed information in the letter of 13 September in relation to (b) the incurring of expenditure inappropriately by Board members with their own company and sanctioned by the Chair. Allowing a Board member to take legal advice from his own company on behalf of the College, despite a clear conflict of professional and personal interest – not sharing the advice with the College, thereby creating a breach of trust and potential breach of client confidentiality; and (d) the impact of the Chair’s behaviour and conduct on the senior team, including intimidating, bullying and undermining to the extent that this is now a safeguarding matter. The claimant’s position was that the information in point (b) tended to show that a person had failed, is failing to is likely to fail to comply with any legal obligation to which he is subject, and the information in point (d) tended to show that the health or safety of an individual has been, is being or is likely to be endangered.[323]Point (b) related to the seeking of legal advice from the firm of solicitors where Mr McDowall was a partner. The tribunal acknowledged there may have been an issue regarding a conflict of interest, but noted (as above) that the claimant did not give any evidence to explain why the information she disclosed tended to show there had been a breach of a legal obligation, or what that legal obligation was. The claimant, in the further particulars, made reference to the legal advice concerning Mr and Mrs Martin, whom she described as “close acquaintances” of Mr McDowall. The evidence before the tribunal, which was not challenged, was that the advice was sought in relation to the complaint made by Mrs Martin. Furthermore, there was no suggestion in the evidence to this tribunal that Mr and Mrs Martin were “close acquaintances” of Mr McDowall.[324]The tribunal concluded, in respect of point (b) that the claimant’s belief that the information disclosed tended to show one of the relevant failures was not reasonable in circumstances where there was a lack of clarity regarding the nature of the breach (was it the alleged incurring of expenditure inappropriately; was it not sharing the advice with the College; was it a breach of trust and/or was it breach of client confidentiality?)[325]Point (d) concerned Mr Kerr’s behaviour which was alleged to be intimidating, bullying and undermining to the extent the claimant considered it to be a safeguarding matter. The claimant considered there was a failure to ensure the health and safety of employees at work. The tribunal was satisfied the claimant’s belief was reasonable based on the fact she had received complaints from some staff, and that this matter was in the public interest.[326]The tribunal next considered our conclusion that there was a disclosure of information in the letter of 16 September. We asked whether this was a qualifying disclosure. The tribunal concluded, for the reasons set out above, that points (b) and (d) were not qualifying disclosures. The tribunal further concluded point (c) was not a qualifying disclosure because this related to the disclosure of information where it was alleged that Mr Kerr was taking steps to remove Mr Keegan “due to” him having made whistleblowing disclosures and that Mr Kerr was discouraging appropriate investigation into a number of other whistleblowing complaints. The claimant cannot have reasonably believed the reason for Mr Kerr taking steps to remove Mr Keegan was due to him having made a whistleblowing complaint because Mr Keegan had not done so at the time that statement was made.[327]The tribunal accepted that point (a) was a qualifying disclosure.[328]The tribunal next considered our conclusion that there was a disclosure of information in the letter of 3 September (the third disclosure) where it was stated “I am advised by the SFC to bring to your attention the significant safeguarding concerns here at the College, highlighted by the recently published SFC review report. The report describes staff feeling threatened and unsafe; the current situation having an impact on their mental health; some individuals being very profoundly impacted. The report describe the management style of the Chair as having reportedly serious impact on others… I look to you for immediate support operationally, should senior staff absent themselves from an unsafe working environment (as is the medical advice) or leave; and both legally and reputationally. This risk too is identified in the report.”[329]The tribunal concluded, for reasons set out above, that this was a qualifying disclosure.[330]The tribunal decided there was a disclosure of information in the letter of 26 November (the fourth disclosure) sent to the Scottish Ministers; the SFC; Commissioner for Ethical Standards and OSCR. The tribunal, for the reasons set out above and not repeated here, concluded there was a qualifying disclosure only in respect of the issues identified above.[331]The tribunal concluded there was a disclosure of information in the letter of 22 May 2022 sent to Audit Scotland (fifth disclosure) and further concluded there was a qualifying disclosure in respect of the issues identified above.[332]The tribunal decided a qualifying disclosure was made on 13 September in relation to point (d); on 16 September in relation to point (a); on 3 September; on 26 September (in relation to the points accepted as qualifying disclosures above) and on 22 May 2022 (in relation to the points accepted as qualifying disclosures above).[333]The tribunal noted the respondent took no issue with the person/body to whom disclosures were made. Was the reason or principal reason for Ms McKechnie’s dismissal the fact she had made any of the protected disclosures[334]The relevant statutory provisions are set out above. The tribunal had regard to the case of Abernethy v Mott, Hay and Anderson 1974 ICR 323 where it was said that the reason for dismissal is a set of facts known to the employer, or it may be of beliefs held by him which cause him to dismiss. An employee will only succeed in a claim of automatically unfair dismissal in terms of section 103A Employment Rights Act if the tribunal is satisfied, on the evidence, that the principal reason is that the employee made a protected disclosure. The principal reason is the reason that operated on the employer’s mind at the time of dismissal.[335]In Fecitt v NHS Manchester 2021 IRLR 64 it was held that the causation test for unfair dismissal is stricter than that for unlawful detriment under section 47B: section 103A requires the disclosure to be the primary motivation for the dismissal.[336]In Kuzel v Roche Products Ltd 2008 ICR 799 the following questions were posed:(i) has the claimant shown that there is a real issue as to whether the reason put forward by the respondent was not the true reason;(ii) if so, has the employer proved his reason for dismissal;(iii) If not, has the employer disproved the section 103A reason advanced by the claimant;(iv) if not, dismissal is for the 103A reason.[337]We also had regard to the case of Beatt v Croyden Health Services NHS Trust 2017 IRLR 748 where it was stated that the reason for a dismissal connotes the factor/s operating on the mind of the decision-maker which motivates them to make the decision.[338]We also had regard to the case of Nichol World Travel and Tourism Council 2024 EAT 42 where the EAT considered the extent to which a decision-maker must have knowledge of a protected disclosure if they were not the recipient of it. It was held that “for employers to be fixed with liability, therefore, they ought to know at least something about the substance of what has been made: that they ought to have some knowledge of what the employee is complaining or expressing concerns about”.[339]Ms McKechnie’s representative relied on the Royal Mail Group Ltd v Jhuti 2020 ICR 731 case and submitted that the Jhuti grounds were satisfied in this case in relation to Mr Kerr and his reasons should be treated as being the reasons for dismissal. It was submitted that his reason, or principal reason, for dismissal was the claimant’s first disclosure. The second submission, advanced in the alternative, was that the reason for dismissal was that of Mr Hutchinson, and Mr Hutchinson’s sole or principal reason for dismissal was the claimant’s second to fifth disclosures.[340]The Jhuti case concerned circumstances where the reasons of a person other than the dismissing officer can be treated as the reason for dismissal. This applies in the situation where a person in the hierarchy of responsibility above the employee determined that s/he should be dismissed for a reason but hides it behind an invented reason which the decision-maker adopts, the reason for dismissal is the hidden reason rather than the invented reason.[341]Mr Briggs submitted there were a number of components of the Jhuti test which required satisfaction, and they were(1) the person needs to have decided the claimant was to be dismissed;(2) that person needs to have invented a reason for dismissal and(3) the decision-maker must have adopted the invented reason. He invited the tribunal to accept Mr Kerr, who was above the claimant in the College’s hierarchy, decided, towards the end of January 2021, that the claimant was to be dismissed; he invented a reason to conceal his true motives for dismissal; and in particular he said that the claimant had tried to prevent him from carrying out an investigation into her and that this reason was accepted by Mr Hutchinson and this was his reason for dismissal.[342]The tribunal turned to consider the submissions made by Mr Briggs. He submitted, in relation to point (1) above, that Mr Kerr decided the claimant was to be dismissed and the method he decided upon comprised three elements: first, he would solicit complaints from individuals he knew had had previous issues with the claimant; second, he would approach the Chair of the RSB, Mr Smith, and the SFC, with these complaints in order to arrange financial backing for his plan and third, he would suspend the claimant pending an investigation.[343]Mr Briggs, in relation to the first point of soliciting complaints, submitted there had been no complaints with Mr Kerr before the end of January 2021, yet within a period of 5 or 6 weeks, he had five complaints. He submitted the possibility that the five complaints arose independently of each other should be discounted. There may have been an element of the complaints being coordinated, but it was Ms McKechnie’s belief that Mr Kerr was responsible for soliciting the complaints and the tribunal should draw this inference because the evidence in support of this was almost overwhelming. Mr Briggs referred to the “smoking gun” being Mr Kerr’s email to Ms Cross on her final day, when he asked if she was still on campus. This was with a view to visiting her before she left. Ms Cross was an agency worker: she had only been at the College for six weeks: she was the PA to Ms McKechnie: it was submitted it made no sense for Mr Kerr to wish to visit the College to say farewell to her. It was submitted the only explanation for Mr Kerr’s conduct was because he had heard her contract was being terminated and he was seeking her out in order to solicit a complaint. Mr Kerr did not see Ms Cross that day and it was only some months later, when she was contacted on behalf of Mr Kerr, that she complained.[344]Mr Briggs submitted that Ms Chambers had spoken to Mr Kerr seeking assistance in drafting her complaint. He further invited the tribunal to look carefully at the “notes” made by Mr Kerr of his telephone conversations with the complainers. None of the notes were dated which Mr Briggs described as being “strange” particularly as Mr Kerr was a man who preferred emailed communications.[345]Mr Briggs also referred to the communications from Mr Martin and submitted the first two communications were “fairly anodyne”, yet in February 2021, he purportedly contacted Mr Kerr with a litany of allegations regarding the claimant. Further, in respect of Mrs Martin: she had withdrawn her previous complaint and only reinstated it when contacted by Mr Kerr to advise he had “legal advice supporting him”.[346]Mr Briggs submitted Mr Kerr’s overreaction to the complaints was abnormal and disproportionate. He invited the tribunal to infer that Mr Kerr’s grief was largely manufactured in order to make the allegations against the claimant seem more serious than they were. Mr Briggs lastly invited the tribunal to consider the clandestine treatment Mr Kerr gave the allegations. He did not ever disclose to the claimant that he held allegations in circumstances where there was no reason not to tell her she was facing allegations. It was submitted he did this in order to maintain the element of surprise given his plan to suspend her.[347]We firstly considered the issue of whether Mr Kerr solicited the complaints from the five original complainants. The tribunal found as a matter of fact, preferring the evidence of Mr Kerr to that of the claimant, that Mr Kerr did not solicit the complaints from the five original complainants. Mr Briggs submitted that there were no complaints with Mr Kerr until the end of January 2021, and yet within a 5/6 week period he had gathered the five complaints. The tribunal considered that submission ignored the fact that whilst formal complaints may not have been made, there had certainly been contact by some of the complainants with Mr Kerr, to raise issues, prior to the end of January 2021. For example, Mrs Martin had been in contact with Mr Kerr by telephone in September 2020 to complain about the absence management keeping-intouch meetings with Ms McKechnie and she had raised a grievance regarding Ms McKechnie’s management style and behaviour in November 2020. Further, Mr Martin had sent his letter of resignation to Mr Kerr in December 2020 and in that letter he stated “It was never my intention to leave the College at this stage of my career …. I find the current leadership within the College difficult to work with. The culture of the College is moving quickly from a people centred College to one of an instructional, demand led, policy and procedural driven institution. ..”[348]This was not a situation where suddenly there were five complaints regarding Ms McKechnie: it was a situation where the rumblings of concern developed from gossip about how different it was with the new Principal (Mr Kerr’s evidence that he had received this gossip) into long term staff absence (Ms Martin and Ms Chambers), staff leaving (Mr Martin and Ms Beresford) and formalising of complaints.[349]Mr Kerr was asked specifically in cross examination, and in respect of each of the five complainants, whether he had solicited their complaint, and he denied it. The tribunal found Mr Kerr to be a credible and reliable witness and we accepted his evidence.[350]Mr Briggs referred to Mr Kerr’s email to Ms Cross and suggested that as Ms Cross was agency staff and had only been with the College for six weeks, it would have been very odd for Mr Kerr to want to meet with her to say goodbye. Mr Kerr responded to that suggestion to say that he had had communications with Ms Cross during her time in the College, regarding making arrangements for meetings. He simply considered that if he could thank a member of staff and wish them well, then he would do so. In any event, there was no response to his email and that was the end of the matter. The tribunal accepted Mr Kerr’s evidence regarding this point.[351]The tribunal, in conclusion, decided Mr Kerr did not solicit complaints from the five complainants. The tribunal reached this decision principally because it preferred and accepted the evidence of Mr Kerr. The tribunal, in reaching their decision, also had regard to the fact that it was Mr Kerr who was involved in this and could speak directly to what had happened. This was in contrast to Ms McKechnie, who had no knowledge of these matters at the time and who has constructed a narrative (a conspiracy theory) in which certain things are required to have happened in order for the narrative to flow. The tribunal also had regard to the question of why it was said Mr Kerr wanted the claimant dismissed. This is dealt with below.[352]The second element relied on by Mr Briggs in his submission was that Mr Kerr approached the Chair of the RSB, Mr Smith, and the SFC with his complaints in order to obtain financial backing for his plan. It was submitted that Mr Kerr approached Mr Smith who, during his evidence appeared uncomfortable with the position Mr Kerr had placed him in; that Mr Smith secured financial commitment from the SFC but maintained a self-conscious distance from the decision-making process and that there was little clarity from the respondent for precisely what the scope of the financial backing was for, particularly in light of Mr Smith’s position that the SFC had said they would have to “burst the budget” in order to support Mr Kerr’s course of action. It was clear that Mr Kerr was being bankrolled for something far larger than legal advice. Mr Briggs submitted that key to Mr Kerr’s plan was an element of surprise and this explained why Mr Kerr did not approach Mr McDowall for advice.[353]The tribunal, in considering this submission, had regard to the evidence of Mr Kerr and Mr Smith. We found as a matter of fact that Mr Kerr “reached out” to the SFC for advice regarding the complaints because he had “no-where to turn to which was independent of the Principal”. The SFC told Mr Kerr to make contact with Mr Smith, Chair of the RSB, which he duly did. Mr Smith was contacted by Ms Watt, SFC, to say the SFC could not help but wanted him to do so. Mr Smith, having checked with the SFC that he had authority to do so, and having confirmed there would be no financial impact on New College Lanarkshire’s budget, agreed to do so. Mr Smith advised Mr Kerr to seek legal advice for a process to follow to resolve matters.[354]The tribunal, having made these findings of fact, could not accept Mr Briggs’s submission that Mr Kerr had approached Mr Smith and the SFC for financial backing. We say that because it was clear that it was not Mr Kerr who had asked either the SFC or Mr Smith for financial backing. The tribunal accepted Mr Kerr approached the SFC because he “just wanted to know what to do with this situation. I wanted out of this as soon as the Board made a decision”. We considered we were supported in our findings by the fact it was Mr Smith who agreed with the SFC that he would provide support provided there was no impact on NCL’s budget: it was not Mr Kerr, either directly or indirectly, who asked for financial support.[355]Mr Briggs made reference to the term “burst the budget” and he questioned Mr Kerr and Mr Smith about this. Mr Kerr was unable to comment about that term because when asked about it he replied “I’ve never heard that”. Mr Smith, when asked about it, replied that those were Ms Watt’s words. The tribunal accepted the evidence of Mr Kerr and Mr Smith in concluding that the words “burst the budget” had been used by Ms Watt to Mr Smith, but beyond that there was no evidence to suggest the context in which the words had been said. Mr Briggs suggested the SFC stated they would have to “burst the budget” in order to support Mr Kerr’s course of action, but there was no evidence to support that position.[356]The third element submitted by Mr Briggs was that having solicited the complaints and obtained financial backing, Mr Kerr intended to suspend the claimant pending an investigation. Mr Briggs invited the tribunal to pay close attention to the letter of 27 May 2021 (page 2782), being the advice received by Mr Kerr from Clyde & Co. Mr Briggs submitted Mr Kerr had fully expected to receive legal advice stating he could suspend the claimant, but instead of this he was told that according to the College’s disciplinary policy, the decision to suspend must be taken by the HR Director.[357]Mr Briggs, in his submission, suggested Mr Kerr’s plan A had failed because he did not have authority to suspend the claimant. Mr Kerr then reverted to plan B, which was to convince the Head of HR, Mr McIntosh, to suspend the claimant, but Mr McIntosh refused. Mr Kerr then embarked on plan C, which was to convene an EBM in July but this was stopped because it had been called incompetently, and so plan D was put in place, which was to call an EBM in August, but the SFC told him to stop until such time as the Camm review had reported. Mr Briggs submitted that in all the circumstances, it appeared almost irrefutable that the course of action embarked upon by Mr Kerr between the end of January and November 2021 was in furtherance of an attempt to make sure the claimant left the respondent’s employment.[358]There was no dispute in this case regarding the fact that Mr Smith advised Mr Kerr to seek advice from external solicitors. The tribunal accepted the purpose of seeking advice was for Mr Kerr to understand the process the Board would be required to follow regarding the complaints. The advice from Clyde & Co was produced at page 2782: there was, however, no evidence regarding what information or documentation had been provided to the solicitor giving the advice. The advice from the solicitor noted Mr Kerr, as Chair of the Board, had authority to take disciplinary action; it provided advice regarding the issue of suspension and, by reference to the college’s disciplinary policy, noted the decision to suspend must be taken by the HR Director and advised that the investigation should be carried out by an individual nominated by Mr Kerr, from outwith the college and of comparable seniority to the college’s senior management team.[359]The tribunal noted there was no reference in the letter from the solicitor to the scheme of delegation or the constitutional documents. The tribunal considered this important in this case because there was a conflict between those documents and the college’s internal policies, particularly regarding the issue of who could suspend. The fact the letter at page 2782 made no reference to the other documents, or to any conflict, raised the question of what information was provided to the solicitor giving the advice.[360]The tribunal accepted Mr Kerr had discussions with Mr McIntosh regarding suspension, and that he refused to suspend the claimant; Mr Kerr also tried to convene an EBM in July but had to concede he had wrongly tried to exclude certain members from that meeting and the SFC did ask Mr Kerr not to proceed with the EBM in August because the Camm review had not yet reported. The tribunal, however, could not accept the basic premise of Mr Briggs’ submission which was that Mr Kerr had decided he would suspend the claimant. There was no evidence to support a submission that there was a plan A, which was that Mr Kerr believed he had authority to suspend the claimant. The whole tenor of Mr Kerr and Mr Smith’s evidence was that legal advice was required to understand how to deal with the complaints and who had authority to do what. The legal advice was clear that the complaints required to be dealt with.[361]The tribunal acknowledged Mr Kerr may well have formed the view the claimant should be suspended in order to allow an investigation to be conducted, but that is a very different proposition to the one proposed by the claimant, which was that Mr Kerr set up this whole thing in order to suspend her. Further, and this was a key consideration for the tribunal, we accepted Mr Kerr’s evidence, which he repeated on a number of occasions, which was that what he wanted to do was get the matter to the Board and let them decide how to proceed. Mr Kerr told the tribunal that he “wanted out of this as soon as the Board made a decision”. It was very clear from Mr Kerr’s evidence that whilst the complainants had come to him with their complaints, and whilst he understood those matters needed to be addressed, he did not want to be the one to take it on: he very clearly saw this as a matter for the Board and not for him as an individual.[362]Mr Briggs’ submission regarding Jhuti started with the premise that Mr Kerr decided the claimant was to be dismissed. There were three principal reasons why we could not accept that premise. First, we preferred Mr Kerr’s evidence (which is set out above) and we accepted that what he was trying to do was seek advice about how to deal with the complaints and get the matter to the Board. Second, once the matter was put in the hands of the Board, Mr Kerr could not control or guarantee what decisions would be made. He could not control whether the Board would suspend the claimant, or agree to an independent investigation or decide to dismiss. This was highlighted by the fact that the decision by the Board to suspend the claimant was a majority decision. Third, the question of why it was said Mr Kerr wanted to dismiss the[363]Mr Briggs, in his submission, suggested Mr Kerr decided to dismiss the claimant because he failed to stop the Azets investigation proceeding and he had not liked the claimant bringing issues of alleged corruption to him and he did not like senior staff, such as Mr Martin, being in the cross hairs of any investigation; there was a culture clash between Mr Kerr and the claimant and her attempts to improve governance at the College were a source of irritation to him and he viewed the claimant’s attempts to affect cultural change in the organisation’s approach to governance as a personal insult to him and the previous regime.[364]This was not a submission the tribunal could accept because we preferred Mr Kerr’s evidence regarding these matters. In particular, we had regard to the fact that it was Mr Kerr and Ms Glen who approved the Azets investigation; that the Azets investigation had the full support of the Board and we also had regard to our conclusion that Ms McKechnie unreasonably interpreted Mr Kerr’s email of 1 February as seeking to dissuade her from proceeding with the Azets investigation. We acknowledged Mr Kerr had questions to ask regarding the investigation and that he wanted to be clear regarding the scope of the Azets investigation in circumstances where the internal investigation, which had been completed, had concluded some allegations were unfounded, but there was nothing in that to suggest Mr Kerr did not want the Azets investigation to proceed.[365]There was reference in the submission to Mr Kerr’s email of 1 February where he expressed his concern that the investigation would lead to “undermining confidence in the college”, however the tribunal regarded this comment as not unreasonable given the nature of the allegations which had been made.[366]The suggestion in the submission that Mr Kerr did not like Ms McKechnie bringing issues of alleged corruption to him and he did not like senior staff such as Mr Martin being in the cross hairs of any investigation, were not matters put to Mr Kerr in cross examination. The tribunal acknowledged some frustration on the part of Mr Kerr that Ms McKechnie tended to raise allegations of fraud with him, only to retract them a short time later. This frustration was reflected in Mr Kerr’s email of 1 February when he asked for clarification of the scope for the Azets investigation.[367]The tribunal noted there was no evidence to suggest Mr Kerr had any special relationship with Mr and Mrs Martin, other than the fact they were both longserving and well regarded employees. The claimant sought to rely on the fact Mr Kerr had contacted her regarding Ms Martin’s absence management and suggested a settlement package, and had contacted her regarding Mr Martin’s pension. There was no dispute Mr Kerr had done so, but the tribunal accepted his evidence that he understood these were operational matters and he had done nothing more than hand the issues over to Ms McKechnie. The tribunal concluded (above) there was no insistence or demand for particular action on Mr Kerr’s part and no coercion.[368]The claimant next suggested there had been a culture clash between her and Mr Kerr and her attempts to improve governance were a source of irritation to him and taken as a personal insult to him and the previous regime. The tribunal noted these matters were not put to Mr Kerr in cross examination. The tribunal, having regard to the evidence before it, accepted the relationship between Mr Kerr and Ms McKechnie was not ideal. We would not describe this as a culture clash: on Mr Kerr’s part it was an issue with the way in which Ms McKechnie conducted business. So, for example, when he asked to see the CVs of the candidates who had applied for the position of Interim Clerk, Ms McKechnie refused. Ms McKechnie may, or may not, have been right to refuse, but it was the outright refusal with no explanation that Mr Kerr took issue with. On Ms McKechnie’s part, the tribunal formed the impression that she considered Mr Kerr a “rogue Chair”, too used to getting his own way with insufficient regard to governance.[369]The tribunal, as stated above, accepted the relationship between Mr Kerr and Ms McKechnie was not ideal, but there was nothing to suggest that the difficulties between them were of such a serious nature that by January/February 2021 Mr Kerr had decided Ms McKechnie needed to go.[370]The tribunal, in conclusion, decided Mr Kerr did not decide the claimant was to be dismissed because she had made a protected disclosure: he did not solicit complaints: he did not approach Mr Smith and the SFC for financial backing and he did not set out to have the claimant suspended. The claimant has failed to satisfy the first component of the Jhuti test.[371]The tribunal, for the sake of completeness, did go on to consider the second and third components of the Jhuti test. The second component is that Mr Kerr invented a reason for dismissal, and the submission was that the reason invented by Mr Kerr was that the claimant had prevented him from carrying out investigations. It was further submitted that the investigators, and Mr Hutchinson, repeatedly stated in their evidence that the claimant prevented Mr Kerr from carrying out an investigation. The submission was that there was no basis upon which it could be alleged the claimant prevented an investigation because, the claimant was completely unaware there had been complaints made about her until the end of August 2021, and when she learned of them she was keen for an investigation to take place, albeit in line with the College’s internal policies and procedures.[372]We noted there was no dispute regarding the fact Mr Kerr was of the opinion that Ms McKechnie, or someone on her behalf, deliberately tried to undermine the process of getting the matter of the complaints to a Board meeting. This was not an invented reason: it was an opinion based on the actions of Ms McKechnie. For example, Ms McKechnie’s letter to the SFC on 22 June 2021 led to the Camm review which caused delay in the Board being able to deal with the matter until such time as the review had reported (September 2021). Another example was Ms McKechnie’s practice of sending large volumes of highly detailed and lengthy correspondence, a practice referred to in the (McCormick) investigation report as “log-jamming”. Mr Kerr was not the only witness to speak to this practice: Mr Smith referred to receiving three letters of complaint from Ms McKechnie over a period of 17 working days, all concerning complaints about Mr Kerr; Mr Hutchinson referred to receiving no less than 20 emails from Ms McKechnie over a period of two weeks, and Ms Watt referred to “voluminous correspondence” making it more complex with it not always being clear which strand was being addressed or which letter superseded which. A further example was Ms McKechnie sharing matters with senior staff in advance of the EBM proposed in August 2021 and her letter to Board members prior to the November Board meeting; and, her letter to the Cabinet Secretary prior to the November Board meeting, all of which were designed to “pause” proceedings.[373]The tribunal acknowledged that Mr Kerr’s opinion – or allegation - regarding undermining/delaying the progress of matters may, or may not, have been upheld following investigation and that would have been an issue for the investigator; however, it was clear to the tribunal that this was not an “invented” reason, it was an opinion held by Mr Kerr based on the actions of the claimant.[374]The tribunal further noted this was not the reason for dismissal although it did form part of the overall matters falling under the general heading of conduct.[375]The tribunal decided, for these reasons, that the second component of Jhuti was not satisfied.[376]The tribunal component of Jhuti is that the decision-maker must have adopted the invented reason. Mr Briggs submitted that the only person with full knowledge of what was going on at the time was Mr Kerr and Mr Hutchinson received information from Mr Kerr. The information received was overwhelmingly negative and coloured Mr Hutchinson’s view of the claimant from before the investigation began (note Mr Hutchinson’s comment in July 2021 that Ms McKechnie’s character was not suitable for the College and he enquired as to the processes the respondent must follow in respect of her (page 2974). Mr Briggs further submitted the investigators had spent a period of six months speaking to witnesses, including Mr Kerr, before they spoke to the claimant. He submitted they had been exposed to his narrative and led to believe the claimant had been hindering his attempts to investigate. The tribunal was invited to treat Mr Kerr’s reasons as the reason for dismissal, which Mr Hutchinson expressly adopted.[377]This was not a submission the tribunal could accept for a number of reasons. First, it is not correct to say that Mr Kerr was the only person with full knowledge of what was going on at the time. This was a case where no-one had full knowledge of what was going on: this was because either they were not involved throughout, or because correspondence was not copied to them. It was a feature of each witness’ evidence that they did not know the full picture and this made it very difficult for witnesses to remember what they knew at any particular time. For example, Mr Kerr was not aware at the time of the claimant’s letter to the SFC on 22 June: he knew the Camm review was to take place but he did not, at the time, understand/know the reason/s for it.[378]Second, Mr Hutchinson did not only receive information from Mr Kerr. Mr Hutchinson saw the complaints and he had his own experience of being involved in the situation. Mr Hutchison did, in July 2021, and after seeing Ms Chambers’ letter of resignation, exchange emails with Ms Donnelly. Ms Donnelly’s email (page 2974) noted “this letter presents a very real risk of constructive dismissal and this alone should compel us to investigate the concerns around leadership style”. Mr Hutchinson, in response to this, replied “Good grief. Whilst I knew this might be on the cards, I am shocked. For me, there is overwhelming evidence that the Principal’s behaviour and character are not suitable for the college. I would very much like to know what our options are in order to move forward, and the process which we must follow”.[379]Third, Mr Kerr was but one of a large number of witnesses interviewed by the investigators. The issue of hindering the investigation was but one point to be investigated and not all of the information gathered and relied upon came from Mr Kerr and Mr Hutchinson.[380]Fourth, Mr Hutchinson was not the decision-maker in this case. The Board took the decision to dismiss based on the conclusions of the investigation reports that there was a case to answer in respect of some of the allegations. We acknowledge the letter of dismissal made reference to the claimant preventing the board from investigating the complaints, but this cannot be viewed in isolation. The claimant was notified by letter of 9 December of the outcome of the investigation and next steps. The letter confirmed that both investigation reports raised serious concerns about her conduct, suitability for the role of Principal and breaches of governance. The letter set out the allegations which would be considered by the Board, and the reference to where the issue had been dealt with in the investigation report. The allegations were of an abuse of power; demeaning, unkind, rude or bullying behaviour; inappropriate or excessive criticism/discrediting or blaming others; controlling behaviour; gaslighting; creating fearfulness; coldness/remoteness; policy and process over-emphasis/creating hinderance and factionalism and polarisation.[381]The letter of dismissal set out the reason for termination of employment which was that the Board had concluded her behaviour, as described in the above letter, amounted to gross misconduct. The letter then went on to say the Board had concluded that the evidence gained from the investigations showed the claimant had deliberately, and against the best interests of the college, attempted to frustrate the Board in exercising their statutory duties, and that this amounted to gross misconduct. In the subsequent paragraph it was noted the Board agreed that Mr Kerr’s actions in seeking to investigate the five complaints in 2021 were correct. However, the claimant prevented the Board from doing so in an attempt to avoid enquiry or scrutiny.[382]The tribunal considered it very clear from the terms of the letter that the reason for dismissal related to various allegations against the claimant regarding her behaviour, one aspect of which was the hinderance of the investigation. The tribunal concluded that given the number of allegations against the claimant, it could not be said that hinderance of the investigation was the (our emphasis) reason for dismissal. The tribunal, for these reasons, found the third component of the Jhuti test not to be satisfied.[383]The tribunal, in conclusion, found none of the components of the Jhuti test to be satisfied and for that reason we decided this was not a case where Jhuti considerations applied.[384]The tribunal turned to consider the claimant’s alternative submission which was that the reason for dismissal should be accepted as Mr Hutchinson’s and that the dismissal was because she had made protected disclosures two, three, four and five. Mr Briggs suggested in his submission that the dismissal had not been for the five allegations, but for the claimant’s reaction to the complaints, and this can only have been a reference to the letters written by the claimant.[385]The tribunal, in considering that submission, had regard firstly to our conclusion (above) regarding the issue of whether the disclosures at two, three four and five were protected disclosures. We however proceeded to consider the issue of whether the reason for dismissal was because the claimant had made the alleged protected disclosures.[386]We next had regard to our comments above regarding the letter to the claimant setting out the allegations being considered by the Board, the letter of dismissal and the investigation into the allegation of hinderance. We noted from the investigation report that the letter to the Cabinet Secretary (fourth disclosure) was referred to as being designed to "pause” proceedings.[387]We next considered Mr Hutchinson’s knowledge of the alleged disclosures. Mr Briggs suggested, in his submission, that although Mr Hutchinson may not have read any of the disclosures, his evidence was that he was aware of them and aware broadly of what their content was and this was sufficient in law for him to have dismissed unfairly. The tribunal did not consider this submission reflected Mr Hutchinson’s evidence. We noted that Mr Hutchinson was asked, in evidence in chief, whether he, at the time, saw the various letters referred to and relied upon in disclosures 2 – 5. Mr Hutchinson answered no in respect of each letter, although there were some letters, for example, Ms McKechnie’s letter to Ms Somerville on 26 November 2021, where he replied “I don’t think so, I can’t imagine Ms McKechnie sharing that with me”; and in relation to the paper sent by Ms McKechnie with that letter, where Mr Hutchinson answered “possibly”.[388]Mr Hutchinson was asked in cross examination whether he had been aware at the time of the letters having been sent. He replied to say that “there was a general consensus she was reaching out to a number of public bodies to highlight her concerns, but I did not know what was in the letters”. Mr Hutchinson did acknowledge in cross examination that he had been sent a copy of the claimant’s letter of 20 September 2021 to Mr Smith (which we decided was not a protected disclosure), although he was not asked whether he had read it.[389]The tribunal concluded it could not accept Mr Briggs’ submission regarding Mr Hutchinson’s knowledge of the disclosures because it did not correctly reflect the evidence of Mr Hutchinson, and, further, it was not a matter upon which Ms McKechnie gave evidence. The sum total of the evidence before the tribunal regarding Mr Hutchinson’s knowledge of the letters at the time they were sent, was what is set out in the above paragraph. The tribunal concluded, on the basis of that evidence, that Mr Hutchinson did not (with the exception of the copy of the letter of 20 September which she sent to Mr Smith) see the letters relied upon by the claimant as being protected disclosures at the time they were sent. The issue of Mr Hutchinson’s knowledge of the letters which the claimant had sent and their content, at the time of taking the decision to dismiss, was not explored in evidence beyond what is set out above. We therefore concluded, because there was no evidence to suggest otherwise, that there was nothing to suggest Mr Hutchinson had knowledge of the letters (and their content) relied upon by the claimant as being protected disclosures at the time the decision to dismiss was made.[390]Mr Briggs also suggested in his submission that the reference in the letter of dismissal to the claimant’s reaction to the complaints, could only have been a reference to the disclosures she had made which focussed on governance failings and a rogue Chair, and had caused embarrassment to a Board which had lost control over the narrative. We had regard to the letter of dismissal (page 2010) and noted the term referred to appeared in the paragraph where the issue of the claimant preventing the Board from investigating the complaints was being discussed. The letter went on to say that not all of the five complaints had been upheld and it was likely that this would also have been the conclusion reached in 2021 and it might have been possible for all to move on. However, “your reaction to the complaints did not allow for this and instead led to the breakdown in relationships between you and the Board, and a breakdown in governance at the College.”[391]We noted Mr Hutchinson was not asked about this in cross examination. We, having had regard to the terms of the letter and the context in which the phrase referred to was used, concluded that the reaction of the claimant referred to her attempts to prevent the Board from investigating rather than to the letters she sent. We have set out above the points investigated by Ms McCormick regarding this and with the exception of the letter in November to the Cabinet Secretary, the alleged protected disclosures were not referred to. We concluded for these reasons that we could not accept the submission that the term “your reaction to the complaints” was a reference to the protected[392]The tribunal finally considered that the decision to dismiss was made by the Board, and there was no evidence before the tribunal that the Board members were aware of the letters sent by the claimant and relied upon as being protected disclosures, at the time they took the decision to dismiss.[393]The tribunal decided, for these reasons, that even if the claimant had made all of the protected disclosures alleged, the reason for the dismissal of the claimant was not because she had made protected disclosures. We dismissed this aspect of the claim. Unfair dismissal in terms of section 98 Employment Rights Act[394]The issues for the tribunal to determine in respect of this complaint are: was the reason for the claimant’s dismissal a potentially fair reason falling within the meaning of section 98(1) or (2) of the Employment Rights Act; and was the claimant’s dismissal for that reason fair in all the circumstances in terms of section 98(4) Employment Rights Act.[395]The tribunal had regard to the terms of section 98 Employment Rights Act which provides:(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show- (a) the reason (or, if more than one, the principal reason) for the dismissal and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the claimant held.(2) A reason falls within this subsection if it – (b) relates to the conduct of the employee …(3) …(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) depends on whether in the circumstances (including the size and the administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee and, (b) shall be determined in accordance with equity and the substantial merits of the case.[396]The claimant’s representative submitted the dismissal of the claimant had been unfair because the investigation was both procedurally and substantively unfair. He submitted there had been a failure to provide the claimant with allegations to respond to, and instead Ms McCormick had presented a series of “themes” which were almost impossible to respond to. Further, the investigation report and its conclusions were flawed and the outcome was predetermined. Mr Briggs further submitted that Mr Hutchinson’s chairing of the disciplinary hearing in circumstances where he had made his views of the claimant known and had written the paper calling for the claimant’s suspension was unfair.[397]Mr Briggs also invited the tribunal not to accept the respondent’s position regarding the scheme of delegation and constitutional documents trumping the internal policies, and submitted the claimant had a right to have the internal policies applied to her situation. This included the right to have an appeal against the decision to dismiss. Mr Briggs noted the respondent’s alternative position that the claimant, if she had not been dismissed for misconduct, would have been dismissed for some other substantial reason being the breakdown in trust and confidence between her and the Board. Mr Briggs submitted the dismissal would nonetheless be unfair because in trust and confidence cases the tribunal may look behind the trust and confidence issues to consider whether the employer was responsible for creating the situation where the trust was lost. These submissions are considered in detail below. The reason for dismissal[398]The first issue for the tribunal to determine is whether the respondent has shown the reason for the dismissal. The respondent’s primary position was that the claimant was dismissed for her conduct, failing which some other substantial reason, being the breakdown in trust and confidence between the claimant and the Board. Both reasons are potentially fair reasons under section 98 Employment Rights Act.[399]The tribunal referred to the case of Abernethy v Mott, Hay and Anderson (above) where it was said that the reason for dismissal is a set of facts known to the employer, or it may be of beliefs held by him which cause him to dismiss.[400]The tribunal had regard to the fact that in this case the respondent had commissioned an independent investigation to look into the allegations and complaints made regarding the claimant (and Mr Keegan) and complaints made by them regarding Mr Kerr. The tribunal accepted the evidence of Mr Hutchinson that what the Board wanted to do was place everything in the hands of the independent investigators and have them look into it and produce a report with recommendations. Both investigators did this and produced a report which, in the case of the claimant, found there was a case to answer in respect of certain allegations.[401]The tribunal had regard to the evidence of Mr Hutchinson and Mr Smith, and letter of 9 December inviting Ms McKechnie to the disciplinary hearing. In that letter it was stated that both investigation reports raised serious concerns about her conduct, suitability for the role and breaches of governance. In particular, it was said the Board would consider the following allegations: Conduct – a list of 11 issues to be considered was set out; Breakdown in relationships – this was a breakdown in relationships between the claimant, the Board and specifically the then Chair, Mr Kerr. These breakdowns led to significant governance failures in the College and it was alleged that the claimant’s actions and behaviour were largely responsible for, or at least a significant factor in, the breakdown in those relationships. Unsuitability – both reports provided evidence of irreparable unsuitability for the role of Principal and four allegations were set out.[402]The tribunal also had regard to the letter of dismissal on 17 January 2023 where the reason for termination was that the Board had concluded that the claimant’s behaviour, as described in the letter of the 9th December (above) amounted to gross misconduct.[403]The tribunal, above, concluded this was not a case where Jhuti considerations applied and, further, it was not a case where the claimant was dismissed because she had made protected disclosures. The tribunal was satisfied the employer had shown the reason for dismissal was conduct, which is a potentially fair reason falling within section 98(2) Employment Rights Act. The tribunal must now go on to consider whether dismissal for that reason was fair in terms of section 98(4) of that Act. Fairness of the dismissal[404]The tribunal had regard to the case of British Home Stores Ltd v Burchell 1978 IRLR 379 where it was said that to demonstrate a conduct dismissal was fair, the employer must establish the following: that it had a genuine belief in the employee’s guilt; that the belief was reasonable for the employer to hold; and that the belief was reached after the employer had carried out as much investigation into the matter as was reasonable in the circumstances. The conflict between the Constitution and Scheme of Delegation and the internal policies and procedures[405]The tribunal, before it turned to consider each of these matters, considered the issue of the conflict between the scheme of delegation and constitutional documents and the internal policies and procedures of the College. In submissions, Mr Briggs invited the tribunal to accept that the internal policies were incorporated into the claimant’s contract of employment and as such there was an enforceable right to have that policy apply, and it could not be “trumped” by the scheme of delegation which is merely an internal governance document which has no legal standing. The respondent’s submission was that the respondent had sought to follow its own disciplinary procedure to the extent that it could and generally handled the case fairly.[406]The tribunal, in considering this matter, had regard first to the scheme of delegation and the constitutional documents. The Constitution and Articles of Government (page 412) provided for delegation of functions (clause 25) and stated that the Board may delegate the performance of any of their functions to their Chair, and committee appointed by them or any member of their staff. In annexe 3 the functions delegated by the Board were set out. This provided that “This scheme specifies the functions the performance of which is delegated by the Board in terms of section 12(4) of the 1992 Act as repeated on clause 25(1) of the Constitution. All delegations must be exercised in accordance with the law having regard to any lawful direction and guidance by the Secretary of State.” The delegations were dealt with in three main sections, being delegations to the Chair, delegations to the Committees and Delegations to members of staff. It was stated that “It is a rule of law that a delegate cannot delegate and so only the committee or the persons or holders of posts specifically named in this scheme may exercise the function delegated to them. They may not of their own volition delegate the exercise of a function to another.”[407]The following matters were reserved to the Board and therefore excluded from delegation: “(j) appointment of and disciplinary action against the Principal.”[408]The Delegations to the Chair of the Board confirmed the Chair was authorised to “(7) initiate disciplinary action against the Principal or to suspend the Principal with pay in circumstances which may result in disciplinary action being taken against the Principal”.[409]We next had regard to the Scheme of Delegation of the Board of Management approved in March 2021 (page 452) which confirmed that authority reserved to the Board included the appointment and removal of the Principal and Board Secretary. Further, the delegation to the Chair of the Board confirmed the Chair had delegated authority to initiate action further to a decision of the Board to take disciplinary action against, or suspend, the Principal or Board Secretary.[410]The Disciplinary Policy and Procedure (page 321) provided for the decision to suspend a member of staff to be taken by the Head of Human Resources, taking into account the available information regarding the case. It also provided, in the section entitled “Exceptions” that in respect of the Principal, any investigation would be undertaken by an individual nominated by the Chair of the Board of Management; that the disciplinary hearing would be held by the Board of Management excluding the Chairs of the sub-committees and any staff or student members, and an appeal would be heard by the chairs of the sub-committees of the Board of Management.[411]The tribunal noted the Disciplinary Policy had been reviewed in August 2014, and that the Constitution and had been updated in 2016. However, no witnesses spoke to either the process of reviewing or updating policies, or the issue of how this conflict may have arisen, or whether there was an awareness of it prior to these cases.[412]The tribunal considered the starting point, and key document, was the Constitution and Articles of Government because that document set out the authority of the Board and its power to delegate certain functions. We further considered that in terms of this document, it was clear that the appointment of, and disciplinary action against, the Principal was a matter reserved to the Board and could not be delegated. The Chair had delegated authority to initiate action further to a decision of the Board to take disciplinary action against, or suspend, the Principal. The Constitution made clear that if authority is delegated to a person, that person cannot then delegate the authority. We took from this that the authority to suspend the Principal, once delegated to the Chair of the Board, could not then be delegated by him to someone else.[413]This tribunal cannot resolve how the conflict between the constitution and scheme of delegation on the one hand, and the internal policies on the other hand arose, but we concluded that the documents setting out the powers of the Board (constitution and scheme of delegation) must take precedence because they determine what the Board, and its members, have power to do.[414]Mr Briggs submitted the claimant had a contractual right to have the disciplinary process conducted in terms of the internal policy, and he referred to the claimant’s contract of employment which referred, at clause 11, to “Disciplinary Policy and Procedure” and stated “A copy of the Disciplinary Policy and Procedure may be obtained from Human Resources and is available on the College intranet”. The tribunal, having regard to the points set out above, concluded that notwithstanding the reference in the claimant’s contract to the Disciplinary Policy and Procedure, the position must be governed by what the Board and its members had power to do as set out in the constitution and scheme of delegation. Accordingly, we could not accept the submission that the internal policies and procedures essentially trumped those documents. The investigation[415]The tribunal next turned to consider the investigation carried out in this case. There was no dispute regarding the fact that the Board took the decision to instruct two investigations, one with regard to the claimant and Mr Keegan and the other with regard to Mr Kerr. The tribunal, before turning to consider the submissions, had regard to the Burchell case (above), where it was said that the employer must carry out as much investigation as is reasonable in the circumstances before deciding whether dismissal is a reasonable response. Further, in Sainsbury’s Supermarkets v Hitt 2002 EWCA Civ 1588 where it was held that the band of reasonable responses applies to the investigation undertaken by the employer. The issue of what is a reasonable investigation will vary according to the particular circumstances, including the nature and gravity of the case, the state of the evidence and the potential consequences of an adverse finding to the employee (ILEA v Gravett 1988 IRLR 497).[416]The claimant’s representative, in his submissions, took issue with a number of points regarding the investigation. He submitted the claimant had not ever been given any allegations to respond to and suggested this was because there were none. Instead, Ms McCormick had formulated a number of “themes”, which were not allegations and which were in a format which was almost impossible to respond to. It was further submitted that the investigation report was lengthy, took over a year to complete and that neither Ms McCormick nor Ms Bowerman had interviewed the claimants until six months into their investigations, by which time they had interviewed everyone else and formed their conclusions.[417]Mr Briggs also submitted the conclusion reached that the claimant was a “shadowy puppetmaster” was bizarre. The conclusions were flawed and manifestly, and obviously, incorrect. This was because Ms McCormick, and Ms Bowerman and Mr Hutchinson, had started with their conclusions and worked backwards. In any event, the investigation reports did not really matter because the outcome had been predetermined and for a battle weary Board, dismissing the claimant was likely the only option ever considered, particularly given the omnipresence of Mr Hutchinson, who had expressed his views the claimant was not suitable for the post as early as July 2021.[418]The tribunal turned to consider the submissions and we first noted that we accepted the evidence of Mr Hutchinson that what the Board wanted to do was hand everything over to the investigators and for them to investigate and produce a report. We noted that by the time this decision was made there were complaints against Ms McKechnie, Mr Keegan and Mr Kerr and this is what necessitated two investigators being appointed.[419]The tribunal, in considering the reasonableness of the investigation, started by noting the sheer volume of information and documentation in this case which was compounded by the fact that no-one had a complete knowledge or oversight of what had happened: by this we mean that all witnesses could only speak to their knowledge or involvement and there was information and documentation of which they were not aware at the time. This made the task of deciphering what was going on extremely difficult, particularly when that was overlaid by the claimant’s view of what had been going on.[420]Ms McCormick acknowledged that the terms of the investigation were wide, but she believed they needed to be because of the length of time which had passed and the escalation of matters which had taken place. Ms McCormick was asked to investigate the conduct of the claimant, and she adopted a chronological approach to try to understand how things had snowballed. Ms McCormick had complete freedom to carry out her investigation, which meant she interviewed everyone she wanted to. There was no suggestion in this case, for example, that people who ought to have been interviewed had been omitted.[421]Ms McCormick accepted the claimant had not been interviewed until six months into the investigation but this had been due to the fact the claimant had been absent on sick leave and could not be interviewed until declared fit to do so. Ms McCormick had, by the time she interviewed the claimant, interviewed all other witnesses. It was suggested Ms McCormick had been “annoyed” with the claimant for participating, but we formed no impression of this from Ms McCormick’s evidence. We acknowledged that in April 2022 Ms McCormick did advise Mr Hutchinson that if the claimant was not going to be fit to interview, she could conclude her report. We accepted this would have been necessary had the claimant not been fit to interview, but we did not accept this meant Ms McCormick had reached conclusions. We say that because we accepted Ms McCormick’s evidence that she had not yet started to write her report.[422]Ms McCormick was asked specifically about whether the College had been seeking a particular outcome to the investigation and she rejected that suggestion and described that that would have been “career suicide”. She acknowledged the College felt they had a strong case, but understood she had been hired because the lawyers providing advice to the respondent knew her and the quality of her work.[423]The tribunal next considered the approach adopted by Ms McCormick in carrying out the investigation. Ms McCormick noted that the complaints raised against the claimant were extensive and so she had summarised, anonymised and organised them into ten themes. This was the document (setting out the ten themes based on around 100 individual statements of complaint or negative views of the conduct of the claimant taken from the complaints) which was shared with the claimant and discussed during ten interviews with the claimant. Many of the statements of complaint or negative views focussed on the impact the claimant and her management style had on them, and how it had made them feel.[424]The tribunal accepted Ms McCormick’s approach of identifying “themes” did not reflect the usual approach adopted in an investigation, but that does not of itself necessarily mean the approach may not be reasonable. The tribunal in considering this, had regard to the fact there is no requirement for the written complaint to be put to the claimant, provided the information disclosed allows the person to understand the case against them. There can be no doubt in this case that Ms McKechnie had sufficient information from the themes, the statements of complaint and negative views, the examples given, the written information which was shared and the hours of discussion, what the allegations were against her. This was clear from the responses she gave and the comments made: for example, the claimant rebutted what was alleged by stating she “did not recognise any of the descriptors of her or of her leadership style” and in response pointed to six aspects of evidence that showed support for her, including a staff survey report (page 1703).[425]The tribunal accepted these matters were nuanced and on occasion not easy to respond to and we noted Ms McCormick also accepted in cross examination that the matters were “wide”; however, the focus of the investigation was very clearly about behaviour and the impact of behaviour on others.[426]The tribunal was satisfied that Ms McCormick interviewed all relevant persons, gathered information and documentation and, in her report, conducted a process whereby the evidence was evaluated before a conclusion was reached. Ms McCormick gave consideration to what she termed a number of “hypotheses”: these were possible explanations for the claimant’s conduct. So, for example, she considered whether the claimant had been subjected to an orchestrated campaign to remove her from post; had she been the victim of misogyny or bias; was she simply a poor fit for the role; was there a case to answer or was her conduct within the band of reasonable behaviour in which case there was no case to answer. Ms McCormick reached a number of conclusions that there was no case to answer, but on other points, she concluded there was, on the balance of probabilities, a case to answer.[427]The tribunal asked itself whether this investigation fell within the band of reasonable investigations which a reasonable employer might undertake. We decided, having had regard to all of the points set out above, that the investigation did fall within the band of reasonable responses: it was a reasonable investigation.[428]Ms Bowerman’s investigation followed what might be termed a more traditional route whereby Ms Bowerman took the complaints made by Ms McKechnie and Mr Keegan and put them to Mr Kerr for a response, and she interviewed everyone relevant to the issues which were raised, and collected documentation. Mr Briggs submitted the conclusions reached by Ms Bowerman in her report – insofar as they related to the claimant – were flawed and this was because she, and Ms McCormick, had started with their conclusions and worked backwards. The tribunal could not accept that submission given the extensive investigation which was undertaken and the very careful weighing and balancing of the evidence which took place prior to any conclusions being reached.[429]Mr Briggs further submitted that Ms McCormick and Ms Bowerman each artificially ascribed to the claimant perfect knowledge at all times throughout the timeline and he suggested that if the claimant had no knowledge of what Mr Kerr was planning, then it would have been impossible for her to try to prevent an investigation taking place. The tribunal has already commented on the fact no witness was completely sighted on everything that happened, but the suggestion that the claimant had “no knowledge” of what Mr Kerr was planning was not a submission the tribunal could accept. We say that because although the claimant was not told that Mr Kerr had a number of complaints which he was trying to take to the Board, she was told (according to her evidence) in Spring 2021 that Mr Kerr and Mr Smith were “plotting against her”. She was also told by Ms McManus, Deputy Principal, that Mr Kerr was speaking to former employees and she was provided with information from Mr Keegan and Mr McIntosh, which included suspension.[430]The tribunal concluded the investigation carried out by Ms Bowerman also fell within the band of reasonable investigations which a reasonable employer might have undertaken. Did the respondent genuinely believe the claimant was guilty of gross misconduct[431]The tribunal concluded, having had regard to the outcome of the investigations and the serious criticisms made of Ms McKechnie’s conduct, that the members of the Board genuinely believed the claimant was guilty of gross misconduct. We noted Mr Hutchinson’s evidence that there was significant discussion regarding the issue of whether there was misconduct or gross misconduct, but ultimately the Board concluded there had been gross misconduct. Did the respondent have reasonable grounds for its belief that the claimant was guilty of the misconduct alleged[432]The tribunal, in considering this issue, had regard to the fact of the independent investigations having been carried out. Mr Hutchinson described the fact both investigations had independently arrived at the same conclusions regarding Ms McKechnie’s conduct as “powerful”, and that was a descriptor we accepted. Ms McKechnie was critical of Ms Bowerman’s report because her remit had not included investigating the claimant. Ms McKechnie was correct regarding Ms Bowerman’s remit, but her investigation was very much focussed on the complaints which Ms McKechnie had raised. It was within that context that Ms Bowerman reached conclusions regarding the claimant, and it was those conclusions which matched the conclusions of Ms McCormick. This was, indeed, powerful in circumstances where there was little cross over between the investigations and no consultation between the investigators.[433]The tribunal was satisfied that based on the investigation reports, the respondent had reasonable grounds to believe the claimant was guilty of gross misconduct. Was the decision to dismiss fair: did the respondent act reasonably in treating the conduct of Ms McKechnie as justifying dismissal[434]The tribunal had regard to the case of British Leyland (UK) Ltd v Swift 1981 IRLR 91 where the Court of Appeal stated “The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness within which one employer might reasonably take one view: another quite reasonably take a different view.” This approach was applied in Iceland Frozen Foods Ltd v Jones 1983 ICR 17 where the EAT reminded tribunals that they must not substitute their view for the objective test of the band of reasonable responses. The function of the tribunal, as an industrial jury, was to determine whether in the particular circumstances of each case, the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.[435]Mr Briggs in his submission invited the tribunal to find that to some extent the conclusions reached by the investigators were immaterial because the outcome of dismissal was predetermined. He described the disciplinary hearing as a “show trial” and submitted the fact the claimant had been given one hour to defend herself against vague and subjective allegations was unfair. He also invited the tribunal to find it unrealistic to think every member of the Board had read the investigation reports.[436]There was a further submission that the involvement of Mr Hutchinson in the Board meeting in November 2022 had been unfair given he had expressed his view of the claimant being unsuitable for the post, and had written the paper in support of her suspension. He cannot have been impartial.[437]Mr Briggs submitted Mr Hutchinson had decided there would be no appeal against the decision to dismiss, and he had done so because he did not want to risk placing any decision concerning the future of the claimant’s continued employment into someone else’s hands. It was suggested there had been nothing preventing the Board from establishing a disciplinary committee to consider the findings of the investigation, hear the arguments presented by the claimant and then make a recommendation for the Board to vote on. Equally, there was nothing preventing the disciplinary committee’s recommendations to be held as provisional, pending the determination of a similarly constituted appeal committee. The fact there was no appeal against the decision to dismissal was incorrect and unfair.[438]The tribunal considered the submission that the outcome had been predetermined, and noted the suggestion was that the senior members of the Board (Mr Kerr, Mr Hutchinson, Mr Smith) had taken the decision the claimant was to be dismissed long before the involvement of Ms McCormick and Ms Bowerman. The tribunal noted that if we were to accept that submission, we would have to accept that(i) Mr Kerr set out to have the claimant dismissed,(ii) persuaded Mr Hutchinson and Mr Smith to join him in his mission,(iii) persuaded Ms McCormick and Ms Bowerman to agree to “career suicide” by carrying out an investigation to reach a predetermined conclusion and(iv) then persuaded the rest of the Board to vote for dismissal. We could not accept this is what happened because the evidence did not support it.[439]There were a number of reasons the tribunal could not accept the submission. First, we considered the submission was undermined by an earlier part of the submission where it was suggested that Mr Kerr’s aim had not been dismissal, but suspension. Second, there was nothing in the evidence of either Mr Kerr or Mr Hutchinson to suggest Mr Hutchinson would have danced to Mr Kerr’s tune. In fact the evidence suggested that Mr Hutchinson was his own man, and would reach his own decisions irrespective of Mr Kerr. Third, the suggestion that Mr Smith joined with Mr Kerr in a mission to dismiss the claimant was at odds with Mr Smith’s evidence. He told the tribunal on a number of occasions that he had been “horrified” at the idea of suspension: it was not a route he wanted to go down. Fourth, the suggestion that Ms McCormick and Ms Bowerman engaged in a process whereby they agreed to provide an investigation outcome to suit the employer had no basis and was undermined by the length of the investigation and the cost. Fifth, there were 16 members of the Board which included staff and student members who had been very much in support of the claimant and against suspension. There was no evidence to support the suggestion that their vote for dismissal was a foregone conclusion. The tribunal decided, for these reasons, that it could not accept the submission that the outcome of dismissal had been predetermined.[440]We next considered the fact the claimant (and Mr Keegan and Mr Kerr) were each given one hour at the disciplinary hearing to present their response to the case to answer. The tribunal, in considering the reasonableness of this, noted that the reason one hour had been given to each person was because the cases were linked and the Board wished to hear from the three people and have time for deliberations. We acknowledged that one hour would not have been sufficient time to go through each allegation and explain one’s position regarding that matter. However, we questioned whether this was the purpose of the disciplinary hearing in circumstances where the claimant had already been interviewed at length during the investigation and her position noted and considered. Further to this, we considered that the allegations against the claimant were clustered into three groups and the time allotted would have been sufficient to give a response to the three groups of allegations; and, in particular, there was sufficient time to have put forward mitigation and reasons why the Board should not dismiss.[441]The tribunal noted that Ms McKechnie accepted she had had time during the investigation to state her case: she did not explain to the tribunal what it was she had wanted to say at the disciplinary hearing but had had insufficient time to do so. The tribunal acknowledged that it may be unusual for time at a disciplinary hearing to be set, but in circumstances where the investigation had been lengthy and already recorded the claimant’s position in respect of the allegations, and where there were three linked cases, the tribunal did not consider this approach fell outside the band of reasonable responses.[442]The claimant also complained about the length of suspension. The tribunal noted the issue of suspension had been a difficult one for the respondent in circumstances where there was not only conflict regarding who could suspend the claimant, but also conflict regarding whether the claimant should be suspended. The Board, acting on legal advice, accepted, by a majority, that in order to investigate these matters, the claimant required to be suspended. There was no dispute regarding the fact the investigation process, and accordingly the suspension, was a lengthy one, but the major factor contributing to the length of the investigation, and therefore the suspension, was the fact the claimant was on sickness absence for six months and unable to take part in the investigation. The other factor affecting the length of the investigation and suspension was the complexity and volume of documentation to be considered.[443]The tribunal accepted the suspension of the claimant was lengthy, but were satisfied this was due to factors beyond the control of the Board. In addition to this the tribunal had regard to the fact the claimant was offered the opportunity to step aside rather than be suspended, but she refused to do so.[444]The claimant also complained about a lack of fairness in the fact Board members who had made complaints about her, were interviewed in the investigation and took part in the decision-making meeting on 16 January 2023 (for example, Ms Donnelly and Mr Hutchinson). The tribunal noted there was no dispute regarding the fact Ms Donnelly had made a complaint regarding the behaviour of the claimant at the meeting to discuss her whistleblowing complaint; and that Mr Hutchinson did make a statement about the claimant’s suitability for the role after he had read Ms Chamber’s letter of resignation.[445]The tribunal, in considering this matter, had regard to the evidence of Mr Baverstock, who, in response to this issue, told the tribunal that the impact of excluding those Board members who had made complaints, would have been to leave the Board with members who had no knowledge of events. He described that the decision was “nuanced” and that all members of the Board would be guided by the Nolan principles and still able to form an objective view. There had been a lengthy discussion about this and legal advice on the issue had been sought.[446]Mr Hutchinson, in his evidence, echoed what had been said in terms of being able to form an objective view notwithstanding his earlier comments regarding the claimant. Mr Hutchinson had also put a safeguard in place to ensure that he did not lead discussions at the meeting, but instead spoke last after all other views had been expressed.[447]The tribunal, in addition to this, had regard to the fact there were 16 members on the Board and there was nothing to suggest they simply followed the senior Board members (the fact they challenged and voted against suspension demonstrated this).[448]The tribunal, having had regard to submissions and the above points, concluded that in the particular circumstances of this case, with the independent investigations having taken place and reaching the conclusions which they did regarding the claimant’s conduct and behaviour, their participation in the decision-making process did not fall outside the band of reasonable responses.[449]The claimant also challenged the fact there was no right of appeal against the decision to dismiss. Mr Briggs’ submission regarding this matter was that the respondent’s position regarding the procedure they followed was fundamentally misconceived and that the Board could have made provision for not only an appeal, but also for a disciplinary committee to have been established to consider the findings of the investigation, hear the claimant’s arguments and then make a recommendation to the Board to vote on. It was further suggested the disciplinary committee’s recommendations could have been held as provisional, pending determination of a similarly constituted appeal committee. If the claimant appealed, then the disciplinary committee’s recommendation would be set aside and the decision of the appeal committee to either endorse or overturn the original decision would be voted on by the Board. Mr Briggs lay responsibility for not having allowing an appeal firmly at the door of Mr Hutchinson.[450]The tribunal, in considering this point, had regard to the fact that the decision not to allow an appeal was linked to the conflict which existed regarding the constitution and scheme of delegation and the internal policies. We could not accept the submission that responsibility for not allowing an appeal lay with Mr Hutchinson, because it was clear that by the time Mr Hutchinson took over responsibility as Chair, he was being guided by legal advice every step of the way in terms of what the Board did and the correspondence it issued.[451]The tribunal next had regard to the respondent’s submission on this point. Mr Maclean acknowledged the circumstances of the case were unusual. Only the Board had authority to dismiss under the Scheme of Delegation and this was not an authority which could be assigned to an individual Board member or to a committee. The Scheme of Delegation was clear that it was a decision the whole Board required to take and therefore did take. There was no higher authority in the respondent than the Board, and only the Board had power to overturn their decision. Therefore, any appeal (even if first considered by a committee) would require to come back to the same Board who took the decision to dismiss the claimant. This, it was submitted, rendered the process of no reasonable value.[452]Mr Maclean acknowledged the ACAS Code recommended that employees be provided with an opportunity to appeal against any disciplinary action taken against them, it states an appeal should be dealt with “impartially” and “wherever possible by a manager who has not previously been involved in the case”. Both were impractical in this case.[453]Mr Maclean referred to the cases of Jefferson (Commercial) LLP v Westgate EAT 0128/12 and Moore v Phoenix Product Development Ltd EAT 0070/20 as authority for his position that an opportunity to appeal was not always necessary and nor did the lack of an opportunity to appeal render a dismissal unfair. In particular, he quoted from the Jefferson case, at paragraph 24, where the then President of the EAT make it clear that what is reasonable or not “depends upon the particular circumstances of the case to which section 98 makes explicit reference”. Further at paragraph 25 it was stated: “To have a further meeting to restate that position, which on the findings of fact would be all it could achieve, would be to require parties to go through a meaningless charade simply for the sake of it. It is no part of a fair procedure to be conducted for the sake of it if the procedure is truly pointless. … section 98(4) must be applied sensibly and with regard to the substance of the case … [and] it invites the tribunal to consider the circumstances of each case, which inevitably differ”.[454]In the Moore case the EAT noted the terms of section 98(4) and went on to say that “Although an appeal will normally be part of a fair procedure, that will not invariably be so, as to take that fixed approach would be to disregard the clear terms of the statute, which dictate that the circumstances are to be taken into account”.[455]The tribunal, in considering these submissions, had regard to the ACAS Code of Practice and the fact that the section on handling disciplinary issues sets out the steps employers must normally follow and this includes providing employees with an opportunity to appeal. The Code however does acknowledge that it may sometimes not be practicable for employers to take all of the steps set out and dismissal in such cases may still be reasonable.[456]The tribunal next had regard to the fact the Board found itself in the position of having a conflict between the constitution and scheme of delegation and its internal policies and procedures. We considered this was an important factor: the Board did not set out to deny the claimant an appeal, nor did it formulate a policy which denied an appeal, rather it found itself in that position whilst dealing with the claimant’s case.[457]The Board acted on advice received that the decision to dismiss the Principal was a matter reserved to the Board and could not be delegated. This meant the whole Board had to make the decision, and having done so, there was no-where for the claimant to go to appeal either internally or externally. There is no doubt an appeal committee could have been set up or an appeal to an external body allowed, but authority could not have been delegated to them and so ultimately they could only have made a recommendation to the Board, which was the very body which had decided to dismiss. This appeared to the tribunal to fall squarely within the concept of having parties go through a meaningless charade merely for the sake of it.[458]The tribunal having carefully weighed and balanced the unfairness of not allowing an appeal and the very unusual facts and circumstances of this case, concluded that although an appeal will normally be part of a fair procedure, in the circumstances of this case the fact there was no appeal did not render the procedure unfair. We say that because having an appeal before an individual or committee was pointless in circumstances where they would not have had authority to overturn the decision of the Board and could only have made recommendations to the very body which had decided to dismiss.[459]The tribunal next asked itself whether the decision to dismiss fell within the band of reasonable responses which a reasonable employer might adopt. In considering this question the tribunal had regard to the fact the misconduct by the claimant was extremely serious, and had resulted in governance failings and a breakdown in trust and confidence in the relationship between her and the Board. The claimant had shown no insight into her behaviour: she did not accept any wrongdoing and showed no remorse or acknowledgement of the impact of her behaviour on others. She did not offer any mitigation either during the investigation or at the disciplinary hearing. The tribunal considered that given the outcome of the investigations and the fact both investigators reached similar conclusions regarding Ms McKechnie’s conduct and that the respondent believed, and had reasonable grounds upon which to sustain that belief, in the seriousness of the misconduct, that the decision of the respondent to dismiss the claimant fell within the band of reasonable responses which a reasonable employer might have adopted.[460]The tribunal decided the decision of the respondent to dismiss the claimant was fair and reasonable: it was a decision which fell within the band of reasonable responses which a reasonable employer might have adopted. We decided for this reason to dismiss this aspect of the claim. Alternative reason for dismissal – SOSR[461]The respondent submitted that if the tribunal did not accept Ms McKechnie was dismissed by reason of conduct, their position was that the dismissal was due to some other substantial reason within section 98(1)(b) of the Employment Rights Act. The respondent submitted that it would have been reasonable for them to have dismissed the claimant due to a serious and irretrievable breakdown in the relationship between Ms McKechnie and the Board.[462]The tribunal, in considering this submission, noted there was no dispute regarding the fact the relationship had broken down. The claimant accepted in her evidence that she considered the relationship had broken down prior to the investigation being carried out. The fact relationships were fractured beyond repair was also the outcome of the investigation reports.[463]Mr Briggs submitted that dismissal for this reason would still have been unfair because a tribunal may look behind trust issues and consider whether or not the employer was responsible for creating the situation where trust was lost. It was submitted that it was clear that the respondent’s behaviour throughout created the situation. The tribunal considered that it has dealt with this matter in its above considerations which are not repeated here. In addition to this the tribunal considered we were supported in our conclusions by the fact the investigation reports concluded that the fault for the situation lay with the[464]The tribunal, having had regard to all of the issues dealt with above (in terms of unfair dismissal) was satisfied that in circumstances of an undisputed irretrievable breakdown in the relationship between the claimant and the Board, the decision to dismiss would fall within the band of reasonable responses which a reasonable employer might have adopted. We say that because the fact of the breakdown was agreed; the breakdown was irretrievable; trust and confidence had gone; the claimant showed no insight into her behaviour and there was no scope for the situation to improve – indeed, events had shown that the deterioration continued to escalate.[465]The tribunal would, had it had to decide this issue, have concluded that dismissal for some other substantial reason, being the irretrievable breakdown in the relationship between the claimant and the Board, fell within the band of reasonable responses and was fair. Discrimination because of the protected characteristic of sex – section 13 Equality Act[466]The issue for the tribunal to determine is whether, because of the claimant’s sex, the respondent treated the claimant less favourably that it treated, or would treat, others in not materially different circumstances. The alleged less favourable treatment was the dismissal.[467]The tribunal had regard to the relevant statutory provisions, being section 13 of the Equality Act, which provide that a person discriminates against another if, because of a protected characteristic (in this case, sex) the person treats the other less favourably than it treats or would treat others. Further, section 23 Equality Act makes clear that in making the comparison that section 13 requires, there must be no material difference between the circumstances relating to each case.[468]The claimant’s submission invited the tribunal to have regard to unconscious bias and in particular personality traits or behaviour which in men are acceptable, but are considered unacceptable when exhibited by a woman. It was submitted that the allegations made against the claimant, the way they were investigated and the standard by which her personality as a whole was subject to greater scrutiny were all examples of double standards applied by the respondent to women that would not have been applied to a man facing similar complaints. The ten themes mapped almost perfectly onto the common tropes associated with the “difficult woman” stereotype.[469]Mr Briggs made reference to the language of the respondent’s witnesses which demonstrated bias and submitted Mr Kerr, Mr Hutchinson and Mr Smith had colluded to ensure an entirely new and novel approach was manufactured in relation to the claimant which denied her employment rights and subjected her to damaging media attention which destroyed her career and future prospects.[470]Mr Briggs also drew a comparison with the treatment of Mr Kerr during the investigatory process and suggested Mr Kerr had been permitted to engage with staff during the investigation and that his concerns regarding media intrusion were given much greater consideration. There were also considerable differences in the terms of reference and appointment letter for both investigations: for example, the investigation into Mr Kerr was asked to consider areas of mitigation.[471]The respondent’s submission focussed initially on the correct comparator in this case and it was submitted that the key to identifying the correct comparator was in establishing the relevant circumstances which must not be materially different as between Ms McKechnie and the comparator. It was submitted that an appropriate comparator would be a male who had behaved as Ms McKechnie had. The claimant had not identified an actual comparator. There had been reference to the previous Principal, but his circumstances had been materially different to the claimant’s.[472]Mr Maclean referred to the cases of Igen Ltd v Wong 2005 IRLR 258; Barton v Investec Henderson Crosthwaite Securities Ltd 2003 ICR 1205 and Madarassy v Nomura International plc 2007 IRLR 246 and submitted that Ms McKechnie had to establish something more than the simple fact she is female and her comparator is not, in order to succeed in establishing a prima facie case of direct discrimination, and she had failed to do so. Mr Maclean referred to the claimant focussing on the actions of Mr Kerr in seeking to have the five complaints against her investigated and argued that her male predecessor, when faced with complaints, had had those investigated within the College, by HR. It was submitted that Mr Kerr had initially sought to do this, but relationships deteriorated and an informal approach was no longer appropriate. The circumstances regarding the previous Principal and the circumstances regarding the claimant were materially different. The allegations against the previous Principal were anonymous; there was a different Board in place; the previous Principal encouraged the investigation in relation to the allegations made, whereas the claimant had not and Mr Kerr had tried to follow a similar approach to the one taken with the previous Principal but was frustrated from doing so, and when things escalated a different approach was required.[473]Mr Maclean submitted the claimant had failed to establish primary facts which reversed the burden of proof and therefore the claim should fail. If the tribunal found otherwise, it was submitted the respondent had shown sufficient evidence to discharge the burden of proving there had been no discrimination. The reason for dismissal was not due to the claimant’s sex, but due to the respondent’s genuinely held belief, based on the findings of the two investigations, that Ms McKechnie was guilty of gross misconduct. Sex had nothing whatsoever to do with the claimant’s dismissal. Mr Keegan was also dismissed following the same process and for similar reasons to Ms McKechnie. Mr Maclean invited the tribunal to reject the submission that the complaints (the themes) against the claimant were gendered, and submitted that comments relating to empathy, humanity, dictatorial and combative were not gendered comments but could be applied, and were applied, to both sexes.[474]The tribunal first had regard to the issue of the correct comparator. The correct comparator is someone who, in terms of section 23, is in not materially different circumstances to the claimant. We considered in this case that meant the correct comparator would be a male who had had the same type of allegations made against him, had conducted himself in a similar manner to the claimant, had had this investigated and who had not been dismissed. The claimant sought to compare and contrast her treatment to that of the previous Principal and Mr Kerr.[475]The tribunal considered the position regarding the previous Principal. Mr Kerr told the tribunal that the previous Principal had been in post for 17 years and retired in February 2020. The previous Principal had given Mr Kerr a “warts and all” overview of the College when he arrived and told him there had been anonymous complaints against him in 2013 and 2017, which he had passed to the Board for investigation. Mr Kerr could not comment regarding the nature of the complaints because he had not been involved with the College at the time. Mr Kerr observed that the approach of the previous Principal to the complaints and having them investigated, was very different to that of the[476]The claimant provided no evidence to the tribunal regarding the issue of the previous Principal beyond stating an internal procedure had been used to investigate the complaints.[477]We noted this issue was explored in the investigation report (Ms Bowerman). She interviewed Mr Kerr about it, who confirmed that complaints had been made against the previous Principal in 2013 and an independent investigation had been undertaken at the time. An anonymous complaint had been made in 2014 and the then Principal had stood aside while the matter was investigated. An independent investigator had been appointed and reported back to the Board. Mr Kerr had not been a member of the Board at the time and that he did not know the nature of the complaints which had been made. He believed the previous Principal had engaged with and commissioned the investigations.[478]Ms Bowerman interviewed Mr McIntosh who confirmed that a similar allegation had been made against the previous Principal and that had been dealt with through the College procedures. (Mr McIntosh had not, however, been employed at the time of these events).[479]Mr Hutchinson recalled the previous Principal had, in the past, declared that a complaint had been made against him, but Mr Hutchinson could not recall being involved in the investigation of the complaint. He acknowledged it had been handled differently but believed that had been determined by the nature of the complaint.[480]Mr McDowall confirmed he had been involved in the investigation of the complaints, and recalled them being quite different situations, with the only similarity being that it was a complaint against a Principal. He advised anonymous whistleblowing complaints had been received which therefore meant it was quite limited in what could be investigated. Mr McDowall recalled the previous Principal had been called to attend a meeting at which the allegations had been put to him. Mr McDowall had also helped with preparation of the investigation report which had been passed to the Board.[481]Ms Bowerman also had regard to the minutes of the Board meeting held on 19 September 2017 in which the investigation into the previous Principal was discussed. It was noted that an anonymous complaint had been received and, in spite of the anonymity, an investigatory panel had been set up to carry out a full investigation into the allegations. The investigation concluded the allegations were unsubstantiated and the complaint was not upheld.[482]The tribunal, having had regard to the above evidence, concluded the previous Principal had not been in the same, or similar, position to the claimant. We say that principally because there was no evidence to suggest he had faced the same, or similar, complaints to the claimant. In fact, the evidence suggested the complaint against him had been an anonymous whistleblowing complaint.[483]The claimant also sought to draw a comparison between the treatment of Mr Kerr and her, however Mr Kerr cannot be a correct comparator because he was not an employee and did not face the same or similar allegations to the[484]The tribunal next had regard to how a hypothetical comparator would have been treated by the respondent. We considered that a hypothetical comparator would be a male who faced the same, or similar, allegations as the claimant and who had behaved in the same, or similar, way to the[485]The claimant argued that the same, or similar, allegations would not have been made against a male comparator because the allegations were, in and of themselves, sex based and this was especially so regarding the ten “themes”. The themes identified by Ms McCormick were: demeaning, unkind, rude or bullying behaviour; inappropriate or excessive criticism; controlling; gaslighting; fearfulness; lack of empathy/concern for wellbeing; coldness/remoteness; policy and process over-emphasis; contractual issues and access and communications.[486]The tribunal reminded itself that Ms McCormick, having read the complaints from the five complainants and the over-100 statements/concerns raised by them, came up with the ten themes: they were themes, therefore, identified by a woman to summarise the concerns which had been raised which were all about the impact of the claimant’s behaviour and how that had made them feel.[487]The tribunal also reminded itself that the term “difficult woman” was a term used by Mr Briggs throughout his cross examination, but it was not a term which had either been used or adopted by any of the respondent’s witnesses at any time.[488]The tribunal, in considering the submission that these allegations/themes would not have been used in a case involving a male, had regard to the fact the generic expression “bullying” often includes all or some of the themes set out by Ms McCormick. For example, the themes at bullet points one to five above, all fall within what is commonly referred to as bullying. The tribunal considered that Ms McCormick could simply have used the theme of “bullying”, but instead of that she tried to break this down to give more insight into what was being complained of. The tribunal also considered, based on their experience, that “bullying” is often a complaint levelled against males, as indeed are the complaints of demeaning, unkind behaviour; controlling; gaslighting and fearfulness.[489]The tribunal concluded, for these reasons, that it could not accept the submission that the ten themes would not have been levelled against a male.[490]The claimant also argued that there was unconscious bias and reference was made to Mr Smith stating he had had to “chastise” her and referring to the claimant as not being equal to the NLC Principal. The tribunal had regard to the evidence given by Mr Smith where he explained the relationship between New College Lanarkshire, where Professor Moore was Principal and Chief Executive and the respondent College. He explained that in terms of hierarchy Professor Moore took the lead, and was the academic lead for the region. NCL is much bigger than the respondent College in terms of student numbers and funding, and collaboration between the Principals was very important. Mr Smith told the tribunal that Ms McKechnie’s behaviour and attitude towards Professor Moore was slightly disrespectful and she regarded him as an equal, which from an academic viewpoint was incorrect. The tribunal considered that the use of the term “equal” in this context was clear and had nothing whatsoever to do with the sex of the claimant and Professor Moore, or with the claimant being “lesser” than Professor Moore.[491]Mr Smith accepted there had been occasion where he had had to “be very firm with” the claimant, for example, in relation to her ambition to pursue an argument with Professor Moore regarding funding which NCL had applied for and secured, and which was not going to the respondent College. The tribunal was not prepared to draw an adverse inference from this in circumstances where there was nothing else to support the way in which Mr Smith spoke to females.[492]The claimant also suggested that the three senior males on the Board had covertly conspired against her and followed a procedure which denied her employment rights and subjected her to significant damaging media attention, in circumstances where such an approach had never been instigated in relation to any other college or university principal in Scotland. We considered that the arguments regarding covert collusion and the procedure followed by the respondent have been dealt with above, and are not repeated here.[493]The only other factor to which the tribunal had regard was the fact that Mr Keegan faced a number of similar allegations to the claimant, and the same process of independent investigation, disciplinary hearing and dismissal applied in his case.[494]The tribunal concluded that a male hypothetical comparator in the same or similar circumstances as the claimant, would have been dismissed by the respondent. We say that because we were entirely satisfied that any employee facing the same/similar allegations, who had behaved in the same way as the claimant and in circumstances where the relationship of trust and confidence had irretrievably broken down, would have been dismissed. We decided, for these reasons that there was no less favourable treatment, and we decided to dismiss the complaint of sex discrimination. Decision in Ms McKechnie’s case[495]The tribunal decided to:a. dismiss the complaint of automatically unfair dismissal in terms of section 103A Employment Rights Act;b. dismiss the complaint of unfair dismissal in terms of section 98 Employment Rights Act andc. dismiss the complaint of discrimination because of the protected characteristic of sex in terms of section 13 of the Equality Act. Mr Keegan’s claim – list of issues[496]The parties had produced an agreed list of issues as follows:(1) Jurisdiction – time bar (section 48(3)(a) Employment Rights Act). (i) Have the claims for detrimental treatment been presented in time in accordance with section 48(3)(a) ERA; (ii) If any of the detriment claims are out of time, should the time limit be extended by the tribunal in accordance with section 48(3)(b) ERA – (a) was it reasonably practicable for these claims to be have brought in time and (b) if it was not reasonably practicable for the claims to have been brought in time, were they brought within a reasonable period of time thereafter.(2) Protected disclosures (sections 43A – G ERA) (i) The claimant alleged that he made disclosures of the following information: (a) On 25 September 2021, the claimant informed Ms McKechnie by letter of – (i) The Chair’s calling of the EBM meetings against his advice; (ii) The Chair’s failure to provide relevant information to the Board in advance of the EBM held on 30 August 2021 and the fact that he conducted the meeting when the Clerk to the Board could not take a formal record of the meeting; (iii) The Chair’s differing engagement with Board members; (iv) The Chair’s failure to alert the full Board to the ramifications of the resignation of the Chair of the succession planning; (v) The Board’s failure to undertake a performance self-evaluation in 2020; (vi) The Chair’s failure to promote a culture of openness, debate and positive relations and to engage in a constructive and effective manner with the Principal and Board Secretary; (vii) The Chair’s intimidation, bullying and undermining of the senior team and (viii) The Chair’s failure to take action in relation to the conflict of interest of at least two Board members. (b) On 5 October 2021, the claimant sent a copy of the First alleged disclosure to Collette Stevenson, MSP, his constituency MSP and local MSP for the College. The claimant relied on the same alleged disclosures and alleged breach of legal obligations contained in the first disclosure as forming the basis of the second disclosure. (c) On 20 October 2021, the claimant informed Mr Ronnie Smith by email of: (i) concerns regarding the composition of the Board and whether this met legal minimum requirements, and the Chair’s lack of response to those concerns; (ii) concerns regarding arrangements for the induction of the 9 new Board members prior to their first Board meeting and the Chair’s lack of response; (iii) the failure of 5 October Board meeting to proceed and whether it had been rescheduled; (iv) the Chair’s failure to alert the full Board to the ramifications of the resignation of the Chair of the succession planning and (v) the lack of progress regarding the governance section of the auditor’s report in advance of the ARC and FRC meeting on 1 November. (d) On 14 November 2021, the claimant informed Mr Hutchinson by email of his concern that he believed that Mr McDowall should have declared an interest before the start of the Board meeting on 4 November 2021. (e) On 24 November 2012, the claimant submitted a complaint to the Commissioner for Ethical Standards in which he informed them of: (i) the Chair’s calling of EBM meetings against the Interim Clerk’s advice; (ii) the Chair’s failure to provide relevant information to the Board in advance of the EBM held on the 30th August 2021 and the fact that he conducted the meeting when the Clerk to the Board could not take a formal record of the meeting; (iii) the Chair’s differing engagement with Board members; (iv) the Chair’s failure to alert the full Board to the ramifications of this resignation of the Chair of the succession planning; (v) the Board’s failure to undertake a performance self-evaluation in 2020; (vi) the Chair’s failure to promote a culture of openness, debate and positive relations and to engage in a constructive manner with the Principal and the Board Secretary; (vii) the Chair’s intimidation, bullying and undermining of the senior team and (viii) the Chair’s failure to take action in relation to the conflict of interest of at least two Board members. (ii) Did any of these alleged disclosures amount to a disclosure of information rather than an allegation or statement of position. (iii) If any of the alleged disclosures are found to be protected disclosures, was the claimant subjected to (a) bullying by Mr Kerr by him not engaging with the claimant from 25th September 2021 and by Mr Kerr referring to the claimant’s role as “IBS”, and if so, when did this occur; (b) was the length of the claimant’s suspension (between 1 December 2021 and 17 January 2023) excessive and (c) was the claimant named in negative newspaper articles and statements from the Board of Management on various dates during the period 4 September 2021 to 25 April 2023. (iv) Were these acts or omissions detrimental treatment of the claimant by the respondent; (v) If so, did the respondent subject the claimant to this detrimental treatment on the ground of the claimant making any of the alleged protected disclosures and (vi) Did the respondent dismiss the claimant because of making protected disclosures (section 103A Employment Rights Act).[497]The tribunal decided to leave the issue of timebar to the end of our considerations, and so we first considered whether any of the disclosures made by the claimant were protected disclosures. Did the claimant make any protected disclosures[498]The tribunal had regard to the relevant statutory provisions and case law as set out above and not repeated here. We also had regard to the case of Williams v Michelle Brown Am UKEAT/0044/19 to which we were referred and where it was said: “It is worth restating .. that this definition breaks down into a number of elements. First, there must be a disclosure of information. Secondly, the worker must believe that the disclosure is made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in sub-paragraphs (a) to (f). Fifthly, if the worker does hold such a belief, it must be reasonably held”.[499]The tribunal also noted that Mr Keegan asserted not only that he disclosed information but that the information tended to show that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject. The claimant’s disclosures, and the alleged breaches of legal obligation, referred generally to a failure to comply with the principles of good governance. Was there a disclosure of information[500]Mr Byrom submitted that each disclosure provided information as to failures by the Chair and the Board, and although the email of 20 October 2021 (the third disclosure) asked a question, it still provided information of a breach of a legal obligation. It was abundantly clear from the claimant’s evidence that he considered the disclosures were being made in the public interest and that that belief was reasonable considering the issues being raised concerned an institution of public importance and subject to public funding. The claimant believed there were multiple breaches of the Code of Good Governance which were breaches of a legal obligation. It was further submitted that the evidence showed the claimant’s belief was reasonably held. Mr Byrom invited the tribunal to find the five disclosures made by Mr Keegan were protected[501]Mr Maclean, for the respondent, accepted the first disclosure (25 September 2021) contained a disclosure of information in relation to the matters referred to at 2.1 (a) (i) – (vi), but that the disclosures in relation to 2.1(a)(vii) and (viii) were allegations only and not disclosures of information. Mr Maclean submitted the allegation at 2.1(a)(vii) lacked sufficient factual content and specificity such as to be capable of showing one of more of the matters listed in sub-section (1). There were no details of what the alleged intimidation, bullying and undermining were, and no details of the allegation that the Chair had complained he did not get good advice. The allegation at 2.1(a)(viii) was no more than a statement that the Chair had failed to take action in relation to a conflict of interest. There was no factual content and no specificity.[502]The second disclosure was an email to an MSP attaching the first disclosure. Mr Keegan accepted no new disclosures were made and the comments above applied to this disclosure.[503]The third disclosure was not a disclosure of information because the first 4 bullet points were a request for information. There was also nothing to suggest there had been a relevant failure, with the exception of the last point, which merely highlighted the importance of information being provided.[504]Mr Maclean accepted the fourth disclosure did provide information that Mr McDowall should have declared an interest, but there was nothing to link this to a breach of a legal obligation.[505]The fifth disclosure was not a disclosure of information. The correspondence attached the third disclosure, which was not a disclosure of information and also attached the claimant’s grievance, which was not relied upon as a protected disclosure.[506]The tribunal turned to consider the submissions made. The first alleged disclosure was the claimant’s letter of 25 September 2021 to Ms McKechnie (page 617) which he sent under the terms of the “Public Interest Disclosure Act 1998”. The claimant, in that letter, set out eight bullet points (as set out above) and the respondent accepted that in relation to points (i) to (vi) there had been a disclosure of information. The tribunal therefore considered whether there had been a disclosure of information in respect of points (vii) and (viii).[507]In point (vii) the claimant stated he had witnessed the impact on the Chair’s behaviour and conduct on the senior team, including intimidation, bullying and undermining. The claimant went on to say the Chair refused to take advice and had complained to Mr Keegan he did not get good advice. Mr Keegan also noted he was aware the Principal had submitted a grievance to the RSB Chair about the behaviour and conduct of the Chair, and that another member of senior management had submitted a grievance about the Chair to the Principal. The tribunal asked whether this point disclosed sufficient factual content and specificity such as to be capable of showing a breach of a legal obligation. The tribunal considered it did not and we say that because if this was a disclosure about the impact of the behaviour and conduct of the Chair, there is no information regarding either the conduct (beyond an allegation of intimidation, bullying and undermining) or the impact.[508]We next considered point (viii) where the claimant alleged the Chair had failed to take action in relation to the conflict of interest of at least two Board members despite this having been brought to his attention. The tribunal considered that in the absence of identifying the two Board members and providing information regarding the conflict, this point lacked sufficient factual content and specificity such as to be capable of showing a breach of a legal obligation.[509]The tribunal concluded, in respect of the first alleged disclosure, that there was a disclosure of information in relation to points (i) to (vi), but not in respect of points (vii) and (viii).[510]The second alleged disclosure was the claimant’s email to Ms Collette Stevenson, MSP on 5 October 2021 (page 625) where he attached a copy of his letter of 25 September. He also referred to the Principal having sent a whistleblowing letter to Mr Smith, RSB and a retiring Board member adding another letter about the failures of governance of the Chair. The tribunal noted Mr Keegan, in his evidence, accepted no new disclosures had been made, and accordingly the tribunal made the same decision as above, and that was that points (i) to (vi) were disclosures of information but points (vii) and (viii) were not.[511]The third disclosure was the claimant’s email of 20 October to Mr Smith (page 628) where he set out five bullet points. The claimant was complaining about having written to the Chair about matters that needed to be dealt with. The bullet points reflected points he had written to the Chair about. So, for example, the first bullet point was: “Do we have a legal Board of Management - from the 1st October we only had 6 non-executives when the legislation requires a minimum of 7 – 13? I know the RSB have approved the 6 new nonexecutives but our Board needs to approve them too”. Mr Keegan then added “I have asked for an update on their status but have had no response.”[512]The claimant’s email concluded by asking Mr Smith, in his role as Regional Chair, to help him get some answers.[513]The tribunal concluded the information disclosed issues regarding the attempts by Mr Keegan to obtain information and an update from Mr Kerr which was not forthcoming. Examples of this were provided and, in those circumstances, the tribunal concluded there had been a disclosure of information.[514]The fourth disclosure was the claimant’s email to Mr Hutchinson on 14 November (page 637), where the claimant confirmed he believed Mr McDowall should have declared a conflict of interest before the start of the 4 November Board meeting. The claimant set out why he was of that belief. The tribunal was satisfied this was a disclosure of information.[515]The fifth disclosure was the claimant’s letter of 24 November 2021 to the Commissioner for Ethical Standards (page 640). The claimant attached to his letter, the first and second alleged disclosures and his grievance letter of 5 October to Ms McKechnie (which was not relied upon as a protected disclosure). The claimant extracted from the first and second alleged disclosures, the eight bullet points set out above. The tribunal adopted its reasoning as set out above regarding the first and second alleged disclosures and concluded bullet point (i) to (vi) were disclosures of information but points (vii) and (viii) were not.[516]The tribunal, in conclusion, decided: First alleged disclosure – points (i) to (vi) disclosed information but points (vii) and (viii) did not; Second alleged disclosure – as above; Third alleged disclosure – there was a disclosure of information Fourth alleged disclosure – there was a disclosure of information and Fifth alleged disclosure – as for the first alleged disclosure. Was there a qualifying disclosure[517]The tribunal next asked whether, in respect of the points above where we have concluded there was a disclosure of information, there was a qualifying disclosure (that is, one that in the reasonable belief of the worker making it, is made in the public interest and tends to show that one or more of the six relevant failures has occurred or is likely to occur).[518]The tribunal, with regard to the first alleged disclosure noted that bullet point (i) referred to the EBMs in July and August 2021. We further noted there was no dispute regarding the fact Mr Kerr asked Mr Keegan to call the meeting in July and not invite the staff and student members. There was also no dispute regarding the fact Mr Keegan’s advice that this could not be done, was correct, and that Mr Kerr accepted it. Mr Keegan, at the time of writing his letter of 25 September 2021 (the first alleged disclosure) knew the meeting had not been called and had not taken place. Mr Keegan also knew (and this was accepted) that the August EBM had not taken place.[519]Mr Byrom, in his submission, clarified that whilst it was accepted the July and August EBMs had not taken place, it was the attempt to call the meetings that was likely to cause a breach. This, however is not what was relied upon by the claimant in his letter of 25 September, where he talked of “The Chair’s calling (our emphasis) of extraordinary Board meetings against the Interim Clerk’s advice.”[520]The tribunal concluded that in circumstances where Mr Keegan knew the EBMs had not taken place, there could not have been a reasonable belief that the information he disclosed tended to show that breach of a legal obligation had occurred or was likely to occur. No breach had occurred because the EBMs had not taken place, and no breach was likely to occur because those EBMs were in the past. We concluded for these reasons that point (i) was not a qualifying disclosure.[521]The second bullet point concerned the Chair’s failure to provide relevant information to the Board in advance of the EBM held on 30 August 2021 and the fact that Mr Kerr conducted the meeting when the Clerk to the Board could not take a formal record of the meeting. The tribunal again noted this disclosure was made in the letter of 25 September, almost a month after Mr Keegan knew the EBM on 30 August had not taken place. There was no dispute regarding the fact an informal meeting took place at which the Board members received an update. There was no evidence to suggest the Board were asked to make any decision at that meeting. The tribunal concluded that as no EBM took place, and as no decisions were made by the Board, there cannot have been any breach of any legal obligation to provide information to allow the Board to make informed decisions. We further concluded the claimant was aware of all of this prior to making the disclosure and accordingly there could not have been a reasonable belief that the information disclosed tended to show that a breach of a legal obligation had occurred or was likely to occur. The tribunal decided for these reasons that there was no qualifying disclosure in respect of point (ii).[522]The third bullet point was the Chair’s differing engagement with Board members. The tribunal noted (from the information provided in the letter of the 25 September) that this point referred to the “most recent EBM” and alleged some members had information which others did not. The tribunal concluded that in circumstances where the claimant knew the EBM had not proceeded, there could not have been a reasonable belief that the information disclosed tended to show a breach of a legal obligation. We decided for this reason there was no qualifying disclosure.[523]The fourth bullet point was the Chair’s failure to alert the full Board to the ramifications of the resignation of the Chair of the Audit and Risk Committee and his lack of succession planning. The tribunal, in considering this point, noted the Chair of the Audit and Risk Committee resigned on 7 September. Mr Kerr told the tribunal that he had not immediately informed the Board because he had tried, and hoped, to persuade the Chair not to resign. We also noted that without further information regarding dates, it was not possible to fully understand this point. We say that because we did not know whether the Chair of the Audit and Risk Committee resigned in September 2020 or September 2021; we did not know when the Board was informed and, with regards to new members of the Board, we were told the members had been recruited but required to be approved by the Board but we did not know when this happened. We considered that without that information it was very difficult to understand whether the belief of Mr Keegan had been reasonable or not. We therefore concluded, in the absence of sufficient information, that the belief of the claimant that the information disclosed tended to show a breach of a legal obligation was not reasonable, and accordingly there was no qualifying disclosure.[524]The fifth bullet point concerned the Board’s failure to undertake a performance self-evaluation in 2020. The tribunal noted (from the respondent’s submission) the respondent was required to undertake a performance selfevaluation, however, we further noted that no evidence was led at the tribunal regarding this matter. The respondent’s representative referred to the investigation of Ms Bowerman which looked into this point. We had regard to her report and we noted that although there were no evaluations in 2020, given the circumstances of Covid, the College had been granted an extension of time to undertake this self-evaluation. Ms Bowerman also referred to the fact the College had no Board Secretary during this period, and it is the responsibility of the Board Secretary to ensure the self-evaluation took place. In circumstances where no evidence was led to rebut this, the tribunal concluded the claimant cannot have had a reasonable belief that the information disclosed tended to show a breach of a legal obligation.[525]The sixth bullet point concerned the Chair’s failure to promote a culture of openness, debate and positive relations and to engage in a constructive and effective manner with the Principal and Board Secretary. Mr Keegan, in the letter of 25 September, headed up this bullet point with a reference to the Further and Higher Education (Scotland) Act 2005, the Post-16 Education (Scotland) Act and the Code of Good Governance. He then went on to say that “The Code of Good Governance requires the Chair to promote a culture of openness ….” Mr Keegan asserted the College had adopted the Code of Good Governance. The tribunal understood from the information provided that Mr Keegan relied on the Code of Good Governance as the basis for the legal obligation. The tribunal, having regard to the evidence of Mr Baverstock, understood the Code set out the “principles” applying to all Colleges. Mr Baverstock told the tribunal that relationships and behaviour and how those operate are difficult to write down, and therefore the principles are relied upon. The tribunal concluded, on this basis, that it was not reasonable for the claimant to believe the information disclose tended to show a breach of a legal obligation. We accordingly concluded there was no qualifying disclosure.[526]The tribunal concluded, in respect of the first alleged disclosure, that there was no qualifying disclosure.[527]The tribunal concluded, in respect of the second alleged disclosure (which relied on the first alleged disclosure) that there was, for the same reasons, no qualifying disclosure.[528]The tribunal next had regard to the third alleged disclosure. The claimant, having set out some of the points he had written to Mr Kerr about and not received an answer, went on to discuss succession planning and concluded the email by stating “This is a clear breach of governance”. It was not at all clear from the claimant’s email whether he was stating all of the matters were clear breaches of governance or whether that was related to succession planning. Also, it was unclear what alleged legal obligation it was said had been breached: did an alleged breach relate to the alleged failures of Mr Kerr, or the fact he had not responded?[529]The respondent’s representative referred to the case of Blackbay Ventures Ltd t/a Chemistree v Gahir UKEAT/0449/12 where the EAT held that other than in obvious cases, where a breach of a legal obligation is asserted, the source of the obligation should be identified and capable of verification by reference to statute or regulation. We considered the circumstances of the third alleged disclosure fell squarely within this, and for these reasons we concluded there was no qualifying disclosure because the claimant’s belief that the information tended to show a breach of a legal obligation was not reasonable.[530]The fourth alleged disclosure concerned Mr Keegan’s belief that Mr McDowall should have declared a conflict of interest at the start of the Board meeting on 4 November. Mr Keegan was of the opinion that Mr McDowall, who was a partner in Anderson Strathern, who were the respondent’s legal advisers, should have declared an interest at the start of 4 November Board meeting. Mr Keegan was of that opinion because he thought it was “highly likely that one of the new Board members … would ask what the SLC’s lawyers’ position was on the [Azets] report’s conclusions”.[531]Mr Maclean’s submission regarding this point was that the fact Mr McDowall’s firm were the legal advisers to the respondent did not of itself create a conflict of interest. There was nothing about Mr McDowall being a partner in that firm which would prejudice his decision making and the only time there would be likely to be a conflict would be if the Board did not agree with the advice given by Anderson Strathern, or if there was criticism of that advice. If that situation arose Mr McDowall could declare an interest and cease to be involved in the decision making. There was no basis for thinking he would not have done so.[532]The tribunal noted that Mr McDowall was not part of the group (Mr Kerr, Mr Hutchinson, Mr Smith and Ms McKechnie) who declared an interest at the start of each meeting. We also noted the evidence of Mr Baverstock when he told the tribunal that he believed confusion had arisen regarding the declaring of an interest and a conflict of interest. We also had regard to the email Mr Baverstock sent to Mr Keegan at the time (page 637) where he had asked Mr Keegan for clarification around how the “objective test” could be reasonably interpreted so as to require a declaration of interest in this specific situation. Mr Baverstock quoted the objective test, which is “whether a member of the public with knowledge of the relevant facts, would reasonably regard the interest as so significant that it is likely to prejudice your decision making in your role as a member of a public body.” Mr Baverstock went on to say that even if there had been a line of questioning about the legal advice associated with the Azets report, he failed to see how the mere fact of Mr McDowall working for the firm that provided the advice constituted a conflict of interest. Mr Baverstock felt there was confusion between an “interest” and a “conflict of interest” and he referred to the Code which states “Board members should declare any conflicts of interest in the business of the meeting prior to the commencement of each meeting ..”[533]Mr Keegan responded to Mr Baverstock to say that he had taken that position based on his experience, and had had his view corroborated by a fellow Board Secretary and leading authority on governance.[534]The question for the tribunal, in considering whether the belief of Mr Keegan that this information tended to show a breach of a legal obligation, was reasonable found the evidence of Mr Baverstock persuasive, and we say that because of his experience and the fact he held a “neutral” role in all of this, and because Mr Keegan’s position was based on something which might happen, whereas Mr Baverstock’s email indicated a more measured approach of making the decision if the situation arose. We concluded, on that basis, that the belief of Mr Keegan was not reasonable in the circumstances and there was no qualifying disclosure.[535]The fifth alleged disclosure was the claimant’s letter to the Commissioner for Ethical Standards on 24 November 2021, where he attached his first and second alleged disclosures. We have decided, above, that those disclosures were not qualifying disclosures, and on that basis we further decided the fifth alleged disclosure was not a qualifying disclosure.[536]The tribunal, in conclusion, decided none of the alleged disclosures made by Mr Keegan were qualifying disclosures. Was the claimant subjected to detriment because of having made a protected disclosure (section 47B Employment Rights Act)[537]The tribunal, notwithstanding our above decision that none of the disclosures made by Mr Keegan were qualifying disclosures, proceeded to determine whether (if we are wrong in our above conclusions) he was subjected to detriment because of having made a protected disclosure/s.[538]The tribunal had regard to the terms of section 47B Employment Rights Act which provides that a worker has the right not to be subjected to any detriment by any act or deliberate failure to act, by his employer, on the ground that he has made a protected disclosure.[539]The tribunal, having regard to the case of London Borough of Harrow v Knight 2003 IRLR 140, noted that the requirements for a successful claim are: the claimant must have made a protected disclosure; the claimant must have suffered some identifiable detriment; the respondent must have subjected the claimant to that detriment by some act or failure to act and the act, or failure to act, must have been done on the ground that the claimant made a protected disclosure.[540]The tribunal also noted that the term “detriment” should be assessed from the viewpoint of the claimant and means “putting under a disadvantage” (Ministry of Defence v Jeremiah 1980 ICR 13).[541]The claimant asserted he had been subjected to the detriments of:a. bullying by Mr Kerr by(i) him not engaging with the claimant from the 25 September 2021 and(ii) referring to his role as “IBS”;b. an excessively long suspension (between 1 December 2021 and 17 January 2023) andc. being named in negative newspaper articles and statements from the Board of Management on various dates during the period 4 September 2021 to 25 April 2023.[542]The tribunal first considered whether the alleged treatment occurred and if so, whether it was detrimental. We noted, with regard to the first alleged detriment there was no dispute regarding the fact Mr Kerr did refuse to engage with the claimant. Mr Kerr made this clear in an email to Ms McKechnie on 20 September 2021 when he confirmed “I will not engage with the interim board secretary as this would endorse your decision which I’m not prepared to do.” We next asked whether this was detrimental treatment, and we noted the respondent accepted it was such in their submission. Accordingly, the tribunal concluded Mr Keegan suffered detrimental treatment when Mr Kerr refused to engage with him from 20 September 2021 (not 25 September 2021 as suggested by Mr Keegan).[543]The tribunal next noted there was no dispute regarding the fact Mr Kerr did, on occasion, refer to the claimant’s role as “IBS”. We asked whether this was a detriment. The evidence before the tribunal was that the claimant considered this was derogatory and he believed Mr Kerr started to use this after the claimant had sent his letter of 25 September 2021. Mr Kerr’s evidence was that the term “IBS” was no more than an abbreviation for Interim Board Secretary and that he had started to use the abbreviation when the volume of correspondence between himself and Mr Keegan and Ms McKechnie increased significantly.[544]The tribunal, in considering this, had regard to the fact the role is referred to in the Code and Scheme of Delegation as “Board Secretary”. We also had regard to the fact that witnesses, in their evidence, tended to use a number of terms interchangeably for this role. We noted Ms McKechnie had, in her paper to the Board dated 10 February 2021 and in her letter of 15 October 2021 to Mr Smith, used the term Interim Board Secretary. The tribunal accepted Mr Kerr’s evidence that he used the term Interim Board Secretary to distinguish between the role held by Mr Keegan, and that held by Ms Martin, who was still employed as the Board Secretary. We concluded from this that reference to the claimant’s role as Interim Board Secretary was not only correct, but it was also a term used commonly.[545]The tribunal was not referred to the correspondence where Mr Kerr had used the term “IBS”. We noted that the only question put to Mr Kerr in cross examination was that he had started to use the term when Mr Keegan became an irritant. Mr Kerr replied “No – it was simply shorthand”. The claimant’s evidence was that the term “IBS” had been used by Mr Kerr after the 14th September and into October/November. Mr Kerr had started to use it and others followed. Mr Keegan did not recall it being used prior to this. He believed the term reflected something else and was derogatory and intimidating.[546]The tribunal concluded that in circumstances where the abbreviation for the claimant’s role was “IBS”, there was no disadvantage to the claimant’s role being referred to in those terms.[547]The second alleged detriment was the length of the suspension. There was no dispute regarding the fact the claimant was suspended from the 1 December 2021 until 17 January 2023. The respondent accepted this was detrimental treatment and on that basis the tribunal accepted this was a detriment.[548]The third alleged detriment was the claimant being named in negative newspaper articles and statements from the Board of Management on various dates during the period of 4 September 2021 to 25 April 2023. The tribunal noted there was no dispute regarding the fact there was Press interest in the suspension of the claimant and Ms McKechnie, and the standing aside of Mr Kerr.[549]Mr Keegan, in his evidence, told the tribunal that over the period of the suspension the articles would refer to the three of them no longer being on the Board and being investigated for bullying and harassment, which changed to conduct. Mr Keegan stated this caused him distress over a period of time and people would stop him to ask what it was about. He referred to an article on pages 5996 and 5997 which referenced suspension. The article was entitled “SNP deputy Westminster leader under fresh pressure over South Lanarkshire College” and this was the focus of the article arising in connection with the Azets investigation. The final paragraph of the article referred to the “SLC has also been dealing with a collapse in governance relations. College principal Aileen McKechnie and Brian Keegan, interim clerk to the board of management, remain suspended pending the completion of investigations against them and board chair Andy Kerr, a former Labour minister, has voluntarily stepped aside from his role for the duration of the inquiries.”[550]The tribunal had regard to the Press articles produced by Mr Keegan and noted they almost all involved commentary on the Azets investigation and speculation whether Ms McKechnie had been suspended for “ruffling feathers” by instructing that investigation. The articles, when making reference to what had happened to Ms McKechnie, also referred to Mr Keegan. The fact of suspension having taken place to allow an investigation was referred to, and there was also reference to allegations of “bullying, harassment, breaches of governance and behaviour and conduct”. We noted that very little was quoted as being from Mr Hutchinson.[551]Mr Byrom submitted that being named in the Press with regards to his suspension and dismissal had both reputational damage and personal impact on Mr Keegan, especially when the articles were associated with wrongdoing such as theft and fraud. The tribunal noted there was no suggestion in the articles that the allegations of theft and fraud were in any way related to Mr Keegan’s suspension.[552]The tribunal acknowledged that being named in the Press and referred to as “suspended” and/or “dismissed” could be a detriment to a person, but we considered this must depend on context, whether the information was accurate and where the information was coming from. We have referred above to the context of the articles being the Azets investigation and what may/may not have flowed from that. We considered that in respect of the claimant being suspended and the reason for it, the information in the articles was correct and, in relation to where the information came from, the only evidence before the tribunal was that the College had limited engagement with the Press, did not seek out publicity and responded in a limited manner to the press interest. The claimant, in arguing the respondent subjected him to detriment, did not suggest how this was so in circumstances where there was no evidence to suggest the respondent was responsible for the Press articles or what was ,[553]We concluded from this that although Mr Keegan, understandably, may not have liked his name being in the Press, he was not subjected to detriment by the respondent. If the claimant was subjected to a detriment, was it on the ground of him making a protected disclosure/s[554]The tribunal had regard to the case of Aspinall v MSI Mech Forge Ltd EAT/891/01 where the EAT held that “on the ground of” required a causal nexus between the fact of making a protected disclosure and the decision by the respondent to subject the employee to detriment.[555]In the case of Fecitt v NHS Manchester 2012 ICR 372 it was held that section 47B(1) Employment Rights Act required the respondent to show that the detrimental treatment was in no sense whatsoever on the ground of the protected disclosure. The question to be asked is, did the protected disclosure materially (in the sense of more than trivially) influence the respondent’s treatment of the claimant.[556]The claimant’s representative, in respect of the first detriment, submitted Mr Kerr’s bullying occurred after his whistleblowing letter of 25 September 2021, which Mr Kerr had admitted having knowledge of at the time. He further submitted Mr Kerr then also started using the term “IBS”. The tribunal concluded there was detrimental treatment when Mr Kerr refused to engage with the claimant. Mr Kerr set out his position in an email to Ms McKechnie dated 20 September 2021. The tribunal asked whether the first protected disclosure alleged to have been made by the claimant on 25 September 2021, materially influenced the respondent’s treatment of him.[557]The tribunal noted the circumstances surrounding Mr Keegan’s contract had been contentious particularly after Mr Kerr had been asked if the contract should be extended, and had responded “no”. The tribunal accepted there were different views on the type of contract held by Mr Keegan and the correct process to follow to extend/renew/terminate that contract. The material facts however, were that the appointment and termination of the contract of the Board Secretary was a matter for the Board, and Mr Kerr understood that having expressed his view that he did not want the contract to be extended/renewed, believed that is what would happen (that is, that the matter would be referred to the Board for a decision to be taken). In fact, whilst parties argued about this and took legal advice, the contract was renewed/continued and Mr Keegan remained in post. The tribunal accepted Mr Kerr’s evidence that he understood Ms McKechnie had been responsible for this. Mr Kerr, in his email of 20 September, made clear that he would not engage with the Interim Board Secretary and his reason for doing so was because he did not want to be seen to endorse the actions of Ms McKechnie.[558]Mr Keegan argued that the reason Mr Kerr had refused to engage with him was because of his letter of 25 September. The tribunal, however, found that position was undermined by the fact that Mr Kerr confirmed to Ms McKechnie, in his email of 20 September, that he would no longer engage with Mr Keegan. We concluded from this that the claimant’s letter of 25 September (the first alleged disclosure) could not have been the reason for Mr Kerr refusing to engage with the claimant, because Mr Kerr’s decision to refuse to engage with him was taken prior to the letter being sent.[559]The tribunal decided that Mr Kerr not engaging with the claimant, was due to his view that Mr Keegan’s contract should not have been extended and he did not want any engagement with Mr Keegan to be seen as endorsing Ms McKechnie’s action in renewing the contract. The detrimental treatment was, in no sense whatsoever, on the ground of the claimant’s first alleged protected disclosure, in circumstances where the detrimental treatment pre-dated the claimant’s letter of 25 September 2021.[560]The second part of the first detriment was the reference to “IBS”. The tribunal found this was not detrimental treatment. However, we went on to ask the question whether, if this was detrimental treatment, it occurred on the ground the claimant had made the first alleged disclosure on 25 September 2021. Did the protected disclosure materially influence Mr Kerr’s treatment of the claimant?[561]The tribunal, in considering this, had regard to the fact the claimant told the tribunal (above) that Mr Kerr started using the term after 14 September. This was well before the date of the first alleged disclosure on 25 September and we noted there was no evidence to explain the gap between the 14 and 25 September. The tribunal, having had regard to the fact the first alleged disclosure post-dated the start of Mr Kerr using the term, and having also had regard to Mr Kerr’s evidence, and concluded that the reason Mr Kerr started to use the term “IBS” was because the correspondence between the parties had increased significantly and it was easier to use the abbreviation rather than the long-hand term Interim Board Secretary. The tribunal was satisfied, on the basis of the evidence before it, that if use of the term “IBS” was detrimental treatment, the first alleged protected disclosure did not materially influence Mr Kerr in using this term. He used it for the explanation set out above and we decided, for these reasons, to dismiss this aspect of the claim.[562]The second detriment was the length of the claimant’s suspension, which the tribunal accepted was detrimental treatment. The claimant accepted the respondent did not have knowledge of alleged disclosures two and five, and accordingly, it was said this detriment was on ground of having made disclosures one (25 September 2021), three (20 October 2021) and four (14 November 2021). The tribunal asked whether the alleged protected disclosures one, three and four (individually or collectively) materially influenced the length of the claimant’s suspension.[563]Mr Byrom, in his submission, referred to an unreported case Bhebbie v Birmingham Community Healthcare NHS Trust ET case number 1304678/11 where the tribunal found that “a reasonable worker would have perceived the suspension of the claimant, after she had made a protected disclosure, as detrimental because it involved her being removed from her place of work wholly unexpectedly, being deprived of the opportunity to work and being completely isolated, as she was forbidden to enter any NHS premises”. This case appeared to the tribunal to focus on whether suspension may be detrimental treatment rather than on the issue of that treatment being on the ground of having made a protected disclosure.[564]Mr Byrom also submitted there were no complaints about the claimant prior to November 2021: the complaints made by Mr Hutchinson and Ms Donnelly occurred after he had made protected disclosures. He submitted the suspension was as a consequence of whistleblowing disclosures having been made by the claimant. The tribunal considered this submission focussed on the issue of suspension being a detriment, and why suspension had occurred, rather than on the issue of the length of suspension and whether the length of suspension was on ground of having made a protected disclosure.[565]Mr Byrom also submitted the length of suspension, notwithstanding the period of sickness absence, was excessive, particularly as Mr Keegan had finished providing evidence to the investigators in early summer 2022. It was submitted that it was not reasonable for his alleged conduct matters to be combined with others, and the fact that the McCormick report devoted only one chapter to Mr Keegan was supportive of this.[566]The tribunal, in considering this issue, had regard to the fact that the length of the suspension was influenced significantly by the fact both Mr Keegan and Ms McKechnie were off on sickness absence and unable to participate in the investigations for a period of approximately six months. We also had regard to the fact that both investigators would have preferred to interview the claimants earlier in the process, but were unable to do so. If the investigators had adopted their preferred approach, the investigation process would have taken even longer.[567]The tribunal next had regard to the fact that the respondent was not in control of the investigation process: the investigators were in control of it. Further, all of the evidence (for example, from Mr Hutchinson, supported by the investigators) was to the effect the respondent had hoped for, and encouraged, a shorter investigation process. There was no evidence to suggest that either the respondent or the investigators had prolonged the process in order to lengthen the period of suspension.[568]The tribunal accepted the McCormick report devoted only one chapter to Mr Keegan and the complaints against him, and we further accepted he may have finished providing evidence to the investigators by the summer of 2022. However, we could not accept the submission that it had been unreasonable for his conduct matters to be combined with the others. The tribunal considered the decision to have one investigation look into the behaviour/conduct of Ms McKechnie and Mr Keegan, and one to look into the complaints against Mr Kerr was one which fell within the band of reasonable responses particularly given the background to these events and the fact the issues in Mr Keegan’s case were inextricably linked to Ms McKechnie.[569]The tribunal, having had regard to the fact that once the respondent put the investigation into the hands of the investigators, they were no longer in control of the length of time the investigation took, concluded the alleged protected disclosures made by the claimant had no material influence on the length of the suspension. We considered we were supported in that conclusion by the fact Mr Kerr, who raised no whistleblowing complaints, was subject to the same investigation process and timescales.[570]The tribunal next considered the third detriment which was the newspaper articles and statements. The claimant’s position was that the newspaper articles and statements were because of his suspension and dismissal and they were as a result of him having made protected disclosures. The alleged protected disclosures relied upon were numbers one, three and four (as above).[571]The tribunal noted the press articles and statements spanned a period from 4 September 2021 to 25 April 2023. We further noted that the 4 September 2021 predated any of the alleged protected disclosures. We concluded that any articles/statements made prior to the date of the first alleged disclosure cannot have been materially influenced by that disclosure because it had not yet occurred.[572]The tribunal, in considering this issue, asked whether the alleged protected disclosures made on 25 September, 20th October and 14 November, materially influenced the respondent’s treatment of the claimant. The issue which troubled the tribunal was that in a situation where there were many press articles and statements over a period of time, many of which referred to the suspension, the investigation and the reasons for it and the subsequent dismissal of the claimant, how can the alleged protected disclosures have influenced this when it was already happening. This was not a situation whereby a press article or statement was made following an alleged protected disclosure. This was a situation where the articles/statements were happening before, during and after the alleged protected disclosures: in other words, it was happening notwithstanding the alleged disclosures.[573]In addition to this, the many articles and statements relied upon by the claimant did not emanate from the College. There appeared, in the claimant’s position, to be no distinction made between who had issued the articles/statements.[574]The tribunal concluded, for these reasons, that the alleged protected disclosures did not materially influence the respondent’s treatment of the[575]The tribunal decided to dismiss this aspect of the claim because we decided the claimant had not made protected disclosures. Further, even if he had made all of the alleged protected disclosures, and even if the alleged treatment was a detriment, the protected disclosure/s did not materially influence the respondent’s treatment of the claimant. Was the claimant dismissed for making a protected disclosure[576]The tribunal had regard to the terms of section 103A Employment Rights Act (set out above), and also to the issue to be determined by the tribunal, which was whether the reason or principal reason for the dismissal was the fact the claimant had made any of the alleged protected disclosures. The tribunal also had regard to the fact that Mr Keegan was in a different position to that of Ms McKechnie because he did not have qualifying service to bring a claim of ordinary unfair dismissal.[577]The tribunal decided, above, that the claimant had not made any of the alleged protected disclosures. We did however go on to consider whether, if the claimant had made the protected disclosures alleged, that was the reason or principal reason for his dismissal.[578]The tribunal had regard to the Fecitt case (above) where it was stated the causation test for (automatically) unfair dismissal is stricter than that for unlawful detriment under section 47B Employment Rights Act. Section 103A requires the disclosure to be the reason or primary reason for the dismissal[579]We also had regard to the fact the question of whether the making of the disclosure was the principal reason for the dismissal requires an enquiry of the conventional kind into what facts or beliefs caused the decision-maker to decide to dismiss. The question the tribunal should ask is “why did the alleged discriminator act as he did? What consciously or unconsciously was his reason?” (Trustees of Mama East African Women’s Group v Dobson EAT 0220/05). More recently in Croyden Health Services NHS Trust v Beatt 2017 ICR 1240 the Court of Appeal adopted this approach and stated the reason for a dismissal connotes the factors operating on the mind of the decision-maker which cause/motivates them to make that decision.[580]The tribunal next had regard to the submissions of the claimant. Mr Byrom noted the claimant was dismissed for gross misconduct, but submitted this could not be the real reason for dismissal in circumstances where witnesses repeatedly referred to the claimant doing a good job; the incidents relied upon in respect of Ms Donnelly and Mr McDowall were minor and there were no complaints raised about the claimant until after he had made protected disclosures. In the absence of a reasonable basis for dismissal, it was submitted the true reason was that the claimant had made protected[581]Mr Byrom further submitted the process was weighed against the claimant and the reason for that was because he had made protected disclosures. He invited the tribunal to have regard to(i) Mr Hutchinson was plotting with other board members on 29 November 2021 to do “just enough to discredit” the claimant;(ii) the investigation terms of reference were unusually broad;(iii) Mr McCrossan described the type of investigation conducted by Ms McCormick as “alien” to him, that it “never really establishes facts based on evidence” and was a “fishing expedition”;(iv) people who had complained about the claimant were decision-makers;(v) Ms McCormick was not balanced in her approach to the investigation;(vi) both investigators favoured Mr Kerr’s evidence rather than that of the claimants and(vii) Mr Baverstock told the tribunal there was no evidence of the claimant supporting the Chair, but when he was directed to the claimant’s email of the 8th September 2021 (page 769) he agreed this was supportive of the Chair but he had not seen it previously.[582]Mr Byrom submitted Mr Hutchinson, Ms Donnelly and Mr Smith had knowledge of the claimant’s whistleblowing complaints.[583]Mr Byrom’s esto position, should the tribunal not accept that the decisionmakers knew about the whistleblowing therefore cannot determine that this was the reason or principal reason for the dismissal, it was the claimant’s position that the decision-makers were influenced by others in the claimant’s hierarchy to dismiss for an invented reason, when in fact the reason was the protected disclosures. Mr Byrom referred to the Jhuti case (above) and submitted the claimant was dismissed for poor performance but this was not supported by the evidence. A small group within the board, including Mr Kerr, Mr Hutchinson, Mr Smith and Ms Donnelly all exerted influence over the other board members. These individuals had knowledge of the claimant’s whistleblowing complaints. Two had complaints against the claimant. They asserted their influence over the board with respect to a false narrative of the claimant’s poor performance when in fact the protected disclosures were the real reason for dismissal.[584]The respondent submitted that as Mr Keegan had less than two years’ continuous service, he had the burden of showing, on the balance of probabilities, that the reason for the dismissal was an automatically unfair reason. Mr Maclean referred to the case of Nichol v World Travel and Tourism Council 2021 EAT 42 where the EAT considered the extent to which a decision-maker must have knowledge of a protected disclosure if they were not the immediate recipient of it. It was held “For employers to be fixed with liability, therefore, they ought to know at least something about the substance of what has been made: that they ought to have some knowledge of what the employee is complaining or expressing concerns about”. The respondent’s position was that the claimant had not made any protected disclosures but, if the tribunal found otherwise, none of the alleged disclosures were the reason, or principal reason, for the dismissal. The principal reason for the dismissal of the claimant was conduct (or, in the alternative, a breakdown in trust and confidence).[585]Mr Maclean submitted there was a serious governance failure at the respondent in the period leading to the claimant’s suspension in November 2021. The situation had escalated significantly in the period from the Camm report in August 2021 to November 2021. The Chair, the Principal and Mr Keegan were responsible for ensuring good governance. It was clear that the relationship between Ms McKechnie and Mr Keegan on the one hand, and Mr Kerr on the other hand, had broken down by November 2021 and complaints had been lodged against all three. The Board entirely reasonably instructed an independent investigation to establish the facts. The investigations revealed there was fault on the part of the claimant (and Ms McKechnie and Mr Kerr). Both investigators criticised the conduct of Mr Keegan (and Ms McKechnie) and found that to be the main cause of the governance failings which had occurred. The claimant was dismissed because of this and not because he had made protected disclosures.[586]The tribunal, in considering the submissions, firstly had regard to the issue of knowledge of the (alleged) whistleblowing complaints. We noted that in respect of the detriment claim (section 47B ERA) Mr Byrom acknowledged in his submission that only alleged disclosures one, three and four had been in the knowledge of the respondent (it not being stated specifically who in the respondent had that knowledge). This was in contrast to the submissions made in respect of the dismissal claim, where it was said Mr Hutchinson, Ms Donnelly and Mr Smith had knowledge of the claimant’s whistleblowing complaints.[587]We turned to examine the evidence before the tribunal regarding the issue of knowledge. Mr Hutchinson was asked, during examination in chief, whether he had had sight of the claimant’s letter of 25 September (the first alleged disclosure). Mr Hutchinson did not think he had seen the letter, and was sure he had not been aware of its content. Mr Hutchinson was asked about the second alleged disclosure, being the letter to the MSP on 5 October, and the fifth alleged disclosure being the letter to the Commissioner for Ethical Standards on 24 November, and confirmed he had not seen those letters. Mr Hutchinson was not asked about the third alleged disclosure.[588]Mr Smith was also asked, during examination in chief, whether he had seen the letters of 25 September (first alleged disclosure), 5 October (second alleged disclosure) and 24 November (fifth alleged disclosure) and he confirmed he had not.[589]Mr Hutchinson and Mr Smith were not cross examined regarding their knowledge of the alleged disclosures.[590]The tribunal, based on the evidence before it, was satisfied Mr Hutchinson had knowledge of the email of 14 November 2021, and its contents, (the fourth alleged disclosure) because it was sent to him.[591]We were satisfied Mr Smith had knowledge of the email of 20 October 2021, and its contents, (the third alleged disclosure) because it was sent to him.[592]There was no evidence before the tribunal to suggest Ms Donnelly had knowledge of the alleged disclosures.[593]The tribunal, in addition to the above, noted Mr Kerr was not asked about his knowledge of the alleged disclosures. One question was put in cross examination regarding the email of 25 September from Mr Keegan to Ms McKechnie, but that question was not about Mr Kerr’s knowledge of the email and its contents.[594]The tribunal acknowledged people do not operate in a vacuum and there was potential for the sharing of information regarding the emails sent to Mr Smith and Mr Hutchinson. However, in the absence of the respondent’s witnesses being asked about this, and in the absence of any evidence from the claimants to support this, it was not a conclusion or inference the tribunal were prepared to reach.[595]The tribunal concluded that in terms of the respondent’s knowledge of the alleged protected disclosures, Mr Hutchinson had knowledge of the email of the 14 November 2021, and its contents and Mr Smith had knowledge of the email of the 20 October 2021, and its contents. The next question for the tribunal is whether these disclosures were the reason, or principal reason, for the dismissal of the claimant. Was the making of protected disclosures the principal reason for the claimant’s dismissal[596]The tribunal had regard to the letter of 9 December 2022 (page 1820) sent by Mr Hutchinson to Mr Keegan where he set out the investigation outcome and next steps. Mr Hutchinson, in that letter, summarised the allegations against the claimant which were that(i) he had provided poor quality advice to the Board and failed in his obligations to support the Board, which had been a significant factor in the governance failures in the College;(ii) he had shown evidence of being partisan and of engaging in orchestration, together with the Principal, designed to influence or frustrate the Board;(iii) he had hindered attempts by the Chair to convene an EBM; breached GDPR in relation to Ms Donnelly and addressed issues of conflict of interest incorrectly;(iv) he had displayed arrogant and dismissive behaviour; had been dogmatic in the conduct of his role; sought to discredit Board members and his behaviour had had a negative impact on the Board’s ability to exercise good governance.[597]We also had regard to the letter of termination sent by Mr Hutchinson to Mr Keegan on 17 January 2023 (page 2012). The letter confirmed the reason for the termination of his employment was that the Board had concluded that his behaviour, as described above, amounted to gross misconduct. The letter went on to state that the evidence gained from the investigation showed he had failed in his duties as Clerk to the Board, to advise and support the Board and to remain impartial. Instead he had deliberately hindered the Board and aligned himself with the Principal, placing himself in opposition to the Board. Along with the Principal, and against the best interests of the College, he frustrated the Board in exercising their statutory duties and contributed to the breakdown in governance at the College. The Board concluded this amounted to gross misconduct.[598]The letter went on to acknowledge that prior to these issues arising Mr Keegan had done a lot of good work for the College, and that some of the advice he had given was correct.[599]The letter concluded by stating that Mr Keegan had behaved in a way that was incompatible with his duties and responsibilities as Clerk to the Board and this had materially contributed to a breakdown in the relationship between him and the Board as a whole and had caused the Board to lose trust and confidence in him. The Board concluded that even if they were wrong to conclude that any behaviour amounted to gross misconduct, his continued employment was untenable as a result of the breakdown in the relationship.[600]The claimant submitted that conduct could not have been the reason for dismissal because(i) witnesses had repeatedly referred to the claimant doing a good job;(ii) the incidents with Ms Donnelly and Mr McDowall were minor and(iii) there were no complaints about Mr Keegan until after he made protected disclosures. We examined each of these points.[601]There was no dispute regarding the fact the claimant had done a good job, and the letter of dismissal recognised this. However, that statement was subject to an important qualification, which was that the good work occurred prior to the issues (which were the subject of the investigation) arising.[602]The tribunal next had regard to the fact that none of the witnesses, including the claimant, in their evidence, described the incidents regarding Ms Donnelly and Mr McDowall as “minor”. We noted that not only was there an issue regarding the correctness of what Mr Keegan had done, but there was also an issue regarding the way in which he had done it. Mr Keegan did not speak to Mr McDowall before raising the issue at the Board meeting, and he did not speak to Ms Donnelly to fact check his assumption before informing the Board. Mr Keegan was asked about this in cross examination and whilst initially trying to defend his actions, he reluctantly conceded that speaking to Mr McDowall in advance of the meeting “may have been the way to do it” but he added “by this time there was a lot of mistrust and I wanted everything in writing”. In relation to Ms Donnelly, he accepted that by his actions he had effectively “outed” her to the Board, notwithstanding the fact he knew it was very sensitive.[603]The tribunal next had regard to the claimant’s submission that there were no complaints raised about the claimant until after he had made the protected disclosures. The tribunal noted that whilst there may not have been any formal complaints about the claimant, there was certainly much disquiet about his advice and the way in which he was performing his role. For example, Mr Kerr had concerns regarding the claimant’s behaviour in respect of the August EBM; there was concern regarding the documents circulated by Mr Keegan in advance of the proposed August EBM which included reference to Ms Donnelly’s alleged conflict; there was the meeting on 25 August where Mr Kerr described Mr Keegan’s behaviour as “ferocious” and Mr Kerr did not, in September 2021, want Mr Keegan’s contract to be renewed/extended because he felt Mr Keegan was working against him and had sided with the Principal. We considered it also important to note the background context during the period August to November 2021, when tensions between the parties (Mr Kerr, Mr Keegan and Ms McKechnie) increased significantly, with tit-for-tat complaints being made.[604]The tribunal concluded that whilst no formal complaints may have been made until after Mr Keegan had made the alleged disclosures, regard must be had to the fact there were many concerns regarding Mr Keegan’s conduct prior to him making any protected disclosure.[605]The tribunal next considered the submission that the process was weighed against the claimant because he had made protected disclosures. Mr Keegan took issue with the terms of reference for the investigation being unusually broad; the investigation being no more than a fishing expedition; Ms McCormick not being balanced in her approach and Ms McCormick being selective in her evidence and favouring Mr Kerr’s evidence. We have dealt with these matters above and we do not repeat our discussion. We have acknowledged the terms of the investigation were wide, however we were satisfied that notwithstanding the approach taken by Ms McCormick, the investigation fell within the band of reasonable responses. We reached that conclusion having had regard to the fact that in respect of each allegation Ms McCormick interviewed the relevant witnesses and put the information to Mr Keegan for a response. She then weighed and balanced all of the evidence, considered possible explanations for why Mr Keegan may have behaved in a particular way before reaching her conclusion whether there was a case to answer. The fact Ms McCormick may have favoured Mr Kerr’s evidence is part of the process of gathering information and deciding where the balance lies.[606]We noted reference was made to Mr Baverstock stating there was no evidence of the claimant supporting the Chair, but then being directed to an email which demonstrated the opposite. We were unsure what difference this would have made to the overall conclusions which were much wider than this issue.[607]The tribunal next considered the submissions regarding Mr Hutchinson, whom it was said was “plotting with other board members on the 29 November 2021 to do just enough to discredit the claimant.” We noted there was no dispute regarding the fact Mr Hutchinson, sent an email on 29 November (page 3629) to Mr Kerr and copied to Mr Baverstock and Mr Smith, regarding the Principal’s statement which Ms McKechnie had sent in advance of the Board meeting on 30 November 2021. Mr Hutchinson made some comments regarding Ms McKechnie’s statement and went on to say “Equally, I have not responded to or even acknowledged Brian’s statement. If this is raised or discussed during the meeting, I can go into further detail, but I want to avoid picking apart every correspondence from Aileen, Brian and Gary except for just enough to discredit.”[608]Mr Hutchinson, when asked about this in cross examination, accepted the words had been used, but stated “it was not to discredit the claimant”.[609]The tribunal had regard to the fact this correspondence was the day prior to the Board meeting where the issue of the suspension of the claimants was to be considered. The issue of suspension was contentious. The tribunal preferred Mr Hutchinson’s evidence and accepted he was not seeking to discredit the claimant (our emphasis), but was seeking, if necessary, to discredit what had been written by him in his statement. In other words, Mr Hutchinson, who did not accept what was in Mr Keegan’s statement, intended to put forward a rebuttal and argument about what he considered inaccuracies in the statement. We concluded from this that there was no basis for drawing an adverse inference from the term “discredit”.[610]The tribunal, having dealt with the points raised by the claimant in submissions, next asked ourselves what factors operated on the mind of the decision-maker and motivated them to make the decision to dismiss. We noted the decision-maker in this case was the Board (comprising 16 members). We have set out above our conclusion that Mr Hutchinson knew of the fourth alleged protected disclosure and Mr Smtih knew of the third alleged protected disclosure: beyond that, there was no evidence to suggest other members of the Board knew about any of the alleged disclosures. In those circumstances we were satisfied that the alleged disclosures cannot have been a factor operating in the minds of 14 of the Board members.[611]Mr Hutchinson was asked directly whether Mr Keegan had been dismissed for whistleblowing, and he replied “No – he was not viewed or judged as a whistleblower – it was because of his conduct – whistleblowing was not a factor in his dismissal.”[612]Mr Smith was also asked about this and told the tribunal that the events leading up to the Board meeting in January 2023 had weighed heavily on his mind. He was asked whether whistleblowing had been a factor in reaching the decision to dismiss and replied “No”.[613]The tribunal next had regard to the fact the respondent had put everything – all complaints and correspondence – into the hands of the independent investigators and had given them a wide remit to investigate. The allegations against the claimant (set out above) were wide-ranging and included issues regarding the quality of advice given, partisanship and behaviour. The claimant had an opportunity to state his case to the investigator. The investigation report concluded there was a case to answer in respect of the allegations. The Board meeting in January 2023 was called to consider the outcome of the investigation and to hear from the claimant. The tribunal accepted Mr Hutchinson’s evidence that the Board, based on the investigation report, concluded there had been misconduct, that the misconduct amounted to gross misconduct for which the sanction was summary dismissal, and that this had been a unanimous decision.[614]The tribunal also accepted Mr Hutchinson’s evidence that “The Board relies on the Clerk to keep them on the right path and advice of the highest calibre is required. Mr Keegan did this initially, but as the relationship between Mr Kerr and Ms McKechnie unfolded, he sided with the Principal. He completely blocked trust which the Board has to have in the Clerk. …. If the Board had concluded it was not gross misconduct, he would still have been dismissed because his position was untenable in circumstances where the relationship between him and the Board was broken”.[615]The tribunal considered these paragraphs illuminated the factors operating in the mind of Mr Hutchinson, and they were(a) the fact there had been an independent investigation and that both investigation reports had reached similar conclusions regarding the claimant. Mr Hutchinson described this as “powerful”;(b) there was a case to answer in respect of the allegations against the claimant;(c) once Mr Keegan sided with the Principal, he neglected the essence of his role in respect of the Board and(d) both the respondent and the claimant accepted their relationship had broken down some months earlier.[616]The tribunal concluded, having had regard to these factors and our earlier observations regarding the claimant’s submissions, that even if the claimant had made a protected disclosure to Mr Hutchinson regarding the Mr McDowall issue, this was not a factor motivating Mr Hutchinson to make the decision to dismiss. We say that because we accepted the entire focus of the respondent, including Mr Hutchinson, was on the investigation and the reports produced following that investigation. The respondent dismissed the claimant based on the outcome of the investigation: conduct was the only reason for the dismissal of the claimant.[617]The claimant’s final position was that the decision-makers were influenced by others in the hierarchy to dismiss for an invented reason (conduct) when in fact the real reason was the protected disclosures. This submission was based on the premise that Mr Kerr, Mr Hutchinson, Mr Smith and Ms Donnelly exerted influence over other Board members.[618]The tribunal, in considering that submission, had regard to what is set out above regarding the Jhuti case. We noted that Mr Kerr was not at the January Board meeting as a member of the Board: he attended in order to make representations to the Board regarding the investigation report outcome in respect of himself.[619]The tribunal also noted that Mr Hutchinson adopted the position of speaking last at the Board meeting in order that he did not lead or influence others on the Board. Further, we accepted the evidence that the decision of the Board had been unanimous. Mr Smith told the tribunal that it was his duty, as a Board member, to participate in the discussions, but it was a matter of regret to him that it had all ended in this way. He made the point that he had “nothing to gain” from the dismissals.[620]The tribunal next noted that the Board comprised 16 members, and the evidence demonstrated the members of the Board did not always support Mr Kerr and Mr Hutchinson. This was evidenced by the issue of the suspension of the claimants where there had been a majority decision of the Board and much debate regarding why suspension should not be put in place. The fact it was a majority decision indicated that some members of the Board must have voted against the proposal put forward by Mr Hutchinson that the claimants should be suspended.[621]The tribunal, having regard to all that is said above, was satisfied that this was not a case where the reason for dismissal was invented: there were conduct issues to be investigated, and that is what the respondent did by instructing an independent investigation. The claimant was dismissed for those conduct issues and for these reasons we could not accept the submission that this was a Jhuti case.[622]The tribunal, for the reasons set out above, decided to dismiss the claimant’s claim. Timebar[623]The respondent’s representative argued, with reference to section 48(3)(a) Employment Rights Act, that the claim of having been subjected to detrimental treatment for making a protected disclosure had been presented late. It was accepted that the alleged detriments at 3.1(b) and (c) of the list of issues, had been lodged in time. However, in relation to the two detriments at 3.1(a), it was submitted they had been lodged late. The alleged acts of Mr Kerr not engaging with Mr Keegan occurred from 25 September 2021. The end date for this must be the date Mr Kerr stepped aside (being 23 November 2021), or at the latest the date that Mr Keegan was suspended (being 30 November 2021). There was no engagement between Mr Kerr and Mr Keegan after this date because they had stepped aside or been suspended. It was submitted that accordingly, time started to run on 30 November 2021 and so any claim in respect of not engaging had to be presented or ACAS conciliation commenced by 20 February 2022. The claimant did not in fact commence ACAS early conciliation until 28 February 2021. The claim was out of time.[624]The respondent acknowledged that time may be extended under section 48(3)(b) where it was not reasonably practicable to lodge the claim on time and the claim is submitted within such further period as the tribunal considers reasonable. Mr Maclean referred to the cases of Walls Meat Co v Khan 1978 IRLR 499 and Palmer and Saunders v Southend-on-Sea regarding the meaning of reasonably practicable.[625]The respondent submitted the tribunal should consider the substantial cause of Mr Keegan’s failure to comply with the time limit; whether there was any physical impediment preventing compliance; whether, and if so, when Mr Keegan knew of his rights; whether the employer had misrepresented any relevant matter to the employee and whether Mr Keegan had been advised by anyone, and the nature of any advice given; and whether there was any substantial failure on the part of Mr Keegan or his adviser which led to the failure to present the claim in time.[626]The respondent submitted Mr Keegan knew, or ought to have known of the time limits applicable to his complaint because from at least May/June 201 he had been represented by a trade union official; he accepted in cross examination he had consulted lawyers and had legal advice well in advance of making his claim; he is an intelligent man and capable of ascertaining his rights; he had some familiarity with the law and was fit to participate in the investigation from May/June 2022 and would have been fit to present his claim.[627]The respondent invited the tribunal to find the complaint in respect of the detriment set out at point 3.1(a) had been lodged considerably out of time and no reasonable explanation had been given as to why they could not have been lodged sooner. These complaints should be dismissed because they are timebarred.[628]Mr Byrom, for the claimant, referred to the terms of section 48(3)(a) Employment Rights Act where reference is made to the time limit of three months beginning with the date of the act or failure to act to which the complaint relates or, “where that act or failure is part of a series of similar acts or failures, the last of them…” He submitted that where an act extends over a period of time, the date on which it will be deemed to have been done for the purposes of calculating when the time limit begins to run is the last day of that period. The claimant commenced early conciliation on 28 February 2023.[629]Mr Byrom made reference to the detriments relied on by the claimant and noted, in relation to point (a) that referring to the claimant’s role as “IBS” continued in the respondent’s investigation reports issued to the claimant on 9 December 2022. It was submitted the concept of “a series of similar acts” was distinct from that of an act extending over a period of time. Mr Byrom invited the tribunal to find all three detriments were continuing acts that fell within the 3 month period.[630]The tribunal firstly had regard to the statutory provisions set out in section 48(3) Employment Rights Act which provide that an employment tribunal shall not consider a complaint under this section unless it is presented “(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them or (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.[631]The tribunal next had regard to the alleged detriments and the date of those acts/failures to act. The alleged detriments and the date of those acts were:a. the claimant being subjected to bullying by Mr Kerr by(i) him not engaging with the claimant from 25 September 2021 and(ii) him referring to the claimant’s role as “IBS”,b. the length of the claimant’s suspension (between 1 December 2021 and 17 January 2023) being excessive andc. the claimant named in negative newspaper articles and statements from the Board of Management on various dates during the period 4 September 2021 to 25 April 2023.d. The claimant commenced early conciliation on 28 February 2023, and presented his claim on 25 May 2023.[632]The tribunal noted that in terms of Mr Kerr subjecting the claimant to bullying by not engaging with him, we found (above) that this act took place on the 20 September 2021, and not 25 September 2021 as alleged by the claimant. The basis of the tribunal’s decision was Mr Kerr’s email to Ms McKechnie on the 20 September 2021 when he stated that he would not engage with Mr Keegan. We further noted our comments (above) that in terms of Mr Kerr referring to the claimant’s role as “IBS” we were not provided with a date when this act took place.[633]The tribunal also noted there was no evidence (or submission) to support the basis upon which it was said the alleged detriments were a series of similar acts. The first alleged detrimental act involved Mr Kerr; the second involved the Board and the third involved the Board and the Press. There was no obvious link making the three acts a series of similar acts which it would be reasonable to treat as in time.[634]The tribunal concluded for these reasons that the three alleged detrimental acts were not series of similar acts. We accordingly were satisfied that the first alleged detrimental act was done on 20 September 2021, and early conciliation was not commenced in respect of this act until 28 February 2023. The complaint in respect of this act was presented late.[635]The tribunal decided it was reasonably practicable for the claim in this respect to have been presented in time. We reached that decision because there was no evidence to the contrary: the claimant put forward no reasons why it had not been possible to have presented the claim earlier. The claimant had involvement of his trade union representative and he was in receipt of legal advice. The tribunal concluded for these reasons that it had been reasonably practicable for the claim in respect of the alleged detrimental act (point 3(a)) to have been presented in time. The claim was not presented in time and a tribunal does not have jurisdiction to hear that aspect of the claim.[636]The tribunal decided to dismiss the claim of detriment for making a protected disclosure in terms of section 47B Employment Rights Act and decided to dismiss the claim of automatically unfair dismissal in terms of section 103A Employment Rights Act.