Ms D Fitzpatrick v The Scottish Ministers: 4103399/2020

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4103399/2020

Between

Ms D FitzpatrickClaimant

The Scottish MinistersRespondent

Before

Employment Judge A Kemp

Dr A Gibson (instructed by Solicitor) for respondent

Date 13 January 2022

JUDGMENT

[1]Allows the claimant’s application to amend her claim but only to the extent of a claim under section 103A of the Employment Rights Act 1996 and that on the basis of what are alleged to be disclosures from firstly an email sent by Mr Malcolm Clark the claimant’s trade union representative to Ms Miriam McCloy of the respondent on 17 September 2010 and secondly an email alleged to have been sent to George Cunningham of the respondent in February 2011 in relation E.T. Z4 (WR) to the Chair Incident, provided that the claimant produces a copy of the same, and

[2]Otherwise refuses the claimant’s application to amend her claim.

REASONS

Introduction

[1]This was a Preliminary Hearing held to consider applications to amend the Claim, currently for unfair dismissal and breach of contract, made by the claimant. The application to amend was opposed. It had been made in an email and attachments sent to the Tribunal on 8 November 2021, after an email sent in the previous week explaining that the claimant intended to seek to amend her claim after she had not been able to secure legal representation despite extensive efforts to do so. Each party also submitted written materials prior to the hearing.

[2]The proceedings were conducted remotely. After initial submissions were made orally each party was permitted to make supplementary written submissions that same day, which was done and those submissions have been considered.

The Law

[3]There is a Final Hearing which has been arranged to take place in person commencing on 8 December 2021. There is also a Preliminary Hearing arranged for 29 November 2021 to address any issues of case management.

Background

[4]There was no hearing of evidence, but the following matters arose from the submissions and are or at least may be relevant to the exercise of discretion.

[5]The claimant was employed by the respondent. That employment ended on 24 March 2020 when the respondent dismissed the claimant. Early conciliation commenced on 13 May 2020 and a Certificate was issued on 20 May 2020.

[6]A Claim Form was presented to the Tribunal on 19 June 2020. It referred to a claim of unfair dismissal under section 94 of the Employment Rights Act 1996 and for breach of contract only. The claimant was at that stage represented by a trade union representative Mr Clark. The case was then sisted for a material period whist an internal appeal process was conducted. That process concluded in early May 2021 with the refusal of the appeal against dismissal.

[7]There was a Preliminary Hearing held on 17 May 2021 before me. The Note that was issued after that hearing noted that the claims made were those set out in the preceding paragraph. Eight days were allowed for that hearing, and a List of Issues was set out in draft form which the parties could suggest amendments to if it was not considered to be in appropriate terms. Neither did so within the 14 days allowed to do that.

[8]On 29 July 2021 a Notice of Final Hearing was issued to commence on 8 December 2021 and continue until 17 December 2021.

[9]The claimant sought over a substantial period of time to obtain legal advice to assist her in the pursuit of her claim from a large number of firms, but did not succeed. She sent an email to the Tribunal on 31 October 2021 stating that she would be amending her claim and that she had not secured legal representation. On 2 November 2021 Mr Clark her trade union representative emailed the Tribunal to state that the claimant would be representing herself at the Final Hearing and explaining why that was.

[10]On 8 November 2021 the claimant sent an email with two attachments, one an application to amend and the other a form of amended paper apart to the Claim Form. In that she sought to add new claims to those before the Tribunal for automatically unfair dismissal for having made a public interest disclosure under section 103A of the Employment Rights Act 1996, what was described as automatically unfair dismissal procedurally, and a series of claims for direct discrimination, indirect discrimination, harassment and victimisation under respectively sections 13, 19 26 and 27 of the Equality Act 2010 for the protected characteristics of sex, age, race, belief or religion, and disability.

[11]There has been an earlier claim by the claimant against the respondent, being one for harassment under section 26 of the Equality Act 2010, heard under claim number 4101694/2017. In a Judgment dated 29 January 2018 all bar one of the claims was held to be outwith the jurisdiction of the Tribunal on the basis that they were time-barred and it was not just and equitable to allow the claim to proceed, and in a further Judgment dated 13 August 2018 the Tribunal in a majority decision dismissed that claim, also made under section 26 of the Equality Act 2010, in relation to various cards received by the claimant.

[12]A Review of an aspect of the evidence heard in that case, which the claimant described in her Claim Form in these proceedings as the Chair Incident, was instructed by the First Minister. On 8 November 2018 the Director General of the respondent wrote to the claimant in relation to that Review, which included a finding that there be an investigation under the respondent’s Discipline Policy. That investigation took place and led to disciplinary proceedings against the claimant.

[13]In the letter from the respondent alleging disciplinary matters against the claimant one allegation was “that on several occasions the claimant made false allegations about the Chair Incident, in particular that the incident occurred in December 2010 and that it was in response to the claimant’s “whistleblowing” in September 2010.” In the dismissal letter dated 24 March 2020 the dismissing officer Mr Wallace found that that allegation had been established. It followed a hearing that the claimant did not attend for reasons of ill health. The respondent had received occupational health and other advice to the effect that the claimant was not fit to attend a disciplinary hearing but decided to proceed with it. An appeal was taken, and a hearing took place before Mr Renwick of the respondent, at which the claimant did attend and provide documentary evidence in support of her position.

[14]The respondent’s position is that a photograph of the claimant in the Chair Incident is a true photograph, but that it was taken showing circumstances which took place with the consent of the claimant, and dates from 2009. The claimant’s position is that the photograph shows what she claims amounts to an assault on her, that it was taken in December 2010 and that the incident was a reaction to what she termed whistleblowing raised in September 2010. Submissions

[15]The following contains a very basic summary of the submissions that were made. (i) Claimant

Discussion

[16]The following is a basic summary of the submissions given. The claimant argued that the Chair Incident was central to her claim. She had sought legal advice without success. The reason why the claims within the amendment had not been in the original Claim Form was that at that time she and her adviser Mr Clark hoped that the appeal would succeed. There was a short time frame to prepare the Claim Form. After the appeal decision in early May 2021 she did not then seek to amend the claim as she was seeking legal representation. Her mental health had not been good over the past three years. When asked for detail of the disclosures on which she intends to rely she confirmed the following in relation to the list of five disclosures founded on, set out on page three of her amendment application – 1. Reported to Marion McCloy of HR by email on 12 August 2010. 2. Reported on her behalf by her trade union representative Mr Clark in September 2010. 3. Reported to George Cunningham both by email from Mr Clark and orally by the claimant in February 2011. 4. Reported by email to the HR department in November 2015, February 2016 and March 2016. 5. Reported by presenting a diary of events to HR in August 2010. 6. Reported by email from Mr Clark on 27 September 2010 and by email to Barbara Allison of HR in April 2012. In relation to the claims of discrimination the claimant argued that each of the protected characteristics she referred to was engaged. The religion she founded on was Catholicism. The disability she founded on was mental health issues including a diagnosis of Post Traumatic Stress Disorder. When asked to explain why her dismissal was discriminatory she referred to the history of her treatment at work as she alleged it to be, phrases used in relation to her, the cards received, and that if she had been a young Scottish man the treatment would not have been the same. She argued that if the amendment was not permitted that “the truth would not see the light of day”, although it was explained that she would be able to give evidence even if the amendment were refused on issues as to the reason for dismissal, the reasonableness of it, contribution if any, and whether a fair dismissal could have followed a different procedure, as well as what had or had not occurred on the balance of probabilities for the claim of breach of contract. (ii) Respondent

[17]The following is again a brief summary of the submission made. It was accepted that the second matter the claimant sought to raise, of the unfairness of dismissal procedurally, was not correctly characterised as automatic but within the terms of the original Claim. In relation to the section 103A claim the authority of Pruzhanskaya v International Trade & Exhibitors (JV) Ltd

UKEAT/0046/18

referred to further below it was argued that the respondent would suffer prejudice and hardship if the claim was permitted to be introduced. The alleged protected disclosures were historic, and seeking to investigate them in order to challenge whether they were protected or not would be very difficult. A great deal of information, both from the claimant and respondent, was placed before the decision-makers. The case had been prepared on the basis currently pled. Further investigation would be required if new claims were permitted, as different evidence would be necessary for the section 103A claim. There is little prejudice to the claimant as she has an unfair dismissal claim, and is seeking re-instatement. In relation to the discrimination claims they were out of time, and it was not just and equitable to allow them to be heard so late. There was in any event a lack of specification of matters that were necessary such as less favourable treatment, the provision, criterion or practice, why that placed the claimant at a disadvantage, what the unwanted conduct was and why that fell within the definition of harassment, and the protected act for victimisation. Each of the protected characteristics was different, and required to be treated differently. Reference was made to authority on pleading a claim adequately. The amendment focussed on the acts that the earlier Claim had either held to be outwith the jurisdiction or not established. It was res judicata. The claimant’s position in relation to not including these claims in the Claim Form did not make sense. She had herself prepared the amendment and could have added such detail in the Claim Form, or in May 2021 when the appeal was dismissed. The earlier Claim Form had pled matters very similar in terms to the current amendment. She had had legal advice at that stage. This was an incompetent attempt to re-litigate matters. The claimant had not raised a grievance or any matter under the respondent’s whistleblowing policy. The balance of hardship and injustice favoured refusing the application. The law (i) Amendment

[18]A Tribunal is required when addressing such applications as the present to have regard to the overriding objective, which is found in the Rules at Schedule 1 to the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 which states as follows: “2 Overriding objective The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;

(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;

(d) avoiding delay, so far as compatible with proper consideration of the issues; and

(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.”

Conclusion

[19]The question of whether or not to allow amendment is a matter for the exercise of discretion by the Tribunal. There is no Rule specifically to address that, save in respect of additional respondents in Rule 34. Whether or not particulars amount to an amendment requiring permission from the Tribunal to be received falls within the Tribunal’s general power to make case management orders set out in Rule 29 which commences as follows: “29 Case management orders The Tribunal may at any stage of the proceedings, on its own initiative or on application to make a case management order….” co-operate generally with each other and with the Tribunal.”

[20]Earlier iterations of the Tribunal Rules of Procedure did contain a specific rule on amendment, and the changes brought into effect by the current Rules, found in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, require to be borne in mind when addressing earlier case law.

[21]The nature of the exercise of discretion in amendment applications was discussed in the case of Selkent Bus Company v Moore

[1996] ICR 836

, which was approved by the Court of Appeal in Ali v Office for National Statistics

[2005] IRLR 201

. In that case the application to amend involved adding a new cause of action not pled in the original claim form. The claim originally was for unfair dismissal, that sought to be added by amendment was for trade union activities. The Tribunal granted the application but it was refused on appeal to the EAT. The EAT stated the following: “Whenever the discretion to grant an amendment is invoked, the tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant;(a) The nature of the amendment Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the additions of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action.

(b) The applicability of time limits If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions, eg, in the case of unfair dismissal, s.67 of the 1978 Act.

(c) The timing and manner of the application An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Rules for the making of amendments. The amendments may be made at any time – before, at, even after the hearing of the case. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery. Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision.”

[22]In Harvey on Industrial Relations and Employment Law Division PI, paragraph 311, it is noted that distinctions may be drawn between firstly cases in which the amendment application provides further detail of fact in respect of a case already pleaded, secondly those cases where the facts essentially remain as pleaded but the remedy or legal provision relied upon is sought to be changed, often called a change of label, and thirdly those cases where there are both new issues of fact and of legal provision on which the remedy is sought, of which Selkent is an example.

[23]The first two categories are noted as being those where amendment may more readily be allowed (although that depends on all the circumstances and there may be occasions where to allow amendment would not be appropriate). The third category was noted to be more difficult for the applicant to succeed with, as the amendment seeks to introduce a new claim which, if it had been taken by a separate Claim Form, would or might have been outwith the jurisdiction of the Tribunal as out of time.

[24]In Abercrombie v Aga Rangemaster Ltd

[2014] ICR 204

the Court of Appeal said this in relation to an amendment which arguably raises a new cause of action and therefore in the third category, suggesting that the Tribunal should: '' … focus not on questions of formal classification but on the extent to which the new pleading is likely to involve substantially different areas of inquiry than the old: the greater the difference between the factual and legal issues raised by the new claim and by the old, the less likely it is that it will be permitted.''

[25]In order to determine whether the amendment amounts to a wholly new claim and in the third of the categories set out above it is necessary to examine the case as set out in the original Claim to see if it provides a 'causative link' with the proposed amendment (Housing Corporation v Bryant

[1999] ICR 123

). In that case the claimant made no reference in her original unfair dismissal claim to alleged victimisation, which was a claim she subsequently sought to make by way of amendment. The Court of Appeal rejected the amendment on the basis that the case as pleaded revealed no grounds for a claim of victimisation and it was not just and equitable to extend the time limit. It said that the proposed amendment. “was not a rectification or expansion of the original claim, but an entirely new claim brought well out of time”.

[26]The Court of Appeal has commented that the extent of any new factual enquiry following an amendment application is one of the factors to take into account, in Evershed v New Star Asset Management Holdings Ltd

[2010] EWCA Civ 870

. If the new claim is sufficiently similar to that originally pled, that supports the granting of the amendment where the “thrust of the complaints in both is essentially the same”.

[27]The onus is on the claimant to persuade the tribunal that it is just and equitable to extend time where a discrimination claim is otherwise outwith the jurisdiction, and the exercise of discretion is the exception rather than the rule (Robertson v Bexley Community Centre

[2003] IRLR 434

), confirmed in Department of Constitutional Affairs v Jones

[2008] IRLR 128

[28]No single factor, such as the reason for delay, is determinative when considering whether or not to allow an amendment and a Tribunal should still go on to consider any other potentially relevant factors beyond those identified in Selkent, such as the balance of convenience and the chance of success: Rathakrishnan v Pizza Express (Restaurants) Ltd

[2016] IRLR 278

, and Gillett v Bridge 86 Ltd

UKEAT/0051/17

[29]Whether to allow amendment is accordingly a multi-factorial approach considering all material circumstances. Whether the claim within the amendment is in time or not is a factor, but an amendment application made in time may not be allowed in some circumstances – Patka v BBC

UKEAT/0190/17

. In Vaughan v Modality Partnership

[2021] IRLR 97

the EAT summarised matters and held that there was a balance of justice and hardship to be struck between the parties. (ii) Time limits

[30]Section 123 of the Equality Act 2010 provides as follows in regard to time limits for discrimination claims such as those under sections 13, 19, 26 or 27 of that Act. “123 Time limits(1) Subject to [sections 140A and section 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable.

(2) Proceedings may not be brought in reliance on section 121(1) after the end of— (a) the period of 6 months starting with the date of the act to which the proceedings relate, or (b) such other period as the employment tribunal thinks just and equitable.

(3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.

(4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.”

[31]This provides in summary that the Tribunal has jurisdiction under the 2010 Act if a claim is commenced (firstly by early conciliation and then by presenting a claim form timeously thereafter) within three months of the act complained of, that being normally referred to as the primary period, but there are two qualifications to that, firstly where there are acts extending over a period when the time limit is calculated from the end of that period, and secondly where it is just and equitable to allow the claim to proceed.

[32]In Chief Constable of Lincolnshire Police v Caston

[2009] EWCA Civ 1298

[2010] IRLR 327

, the Court of Appeal stated the following: “There is no principle of law which dictates how generously or sparingly the “power to enlarge time is to be exercised' (para 31). Whether a claimant succeeds in persuading a tribunal to grant an extension in any particular case 'is not a question of either policy or law; it is a question of fact and judgment, to be answered case by case by the tribunal of first instance which is empowered to answer it”.

[33]In Abertawe Bro Morgannwg University Local Health Board v Morgan

UKEAT/0305/13

the EAT stated that a claimant seeking to rely on the extension required to give an answer to two questions: ''The first question in deciding whether to extend time is why it is that the primary time limit has not been met; and insofar as it is distinct the second is [the] reason why after the expiry of the primary time limit the claim was not brought sooner than it was.''

[34]What is just and equitable involves a broad enquiry having regard in particular to the relative hardships parties may suffer.

[35]There is a further matter to consider, which is the effect of early conciliation on assessing when a claim was commenced. Before proceedings can be issued in an Employment Tribunal, prospective claimants must first contact ACAS and provide it with certain basic information to enable ACAS to explore the possibility of resolving the dispute by conciliation (Employment Tribunals Act 1996 section 18A(1)). This process is known as 'early conciliation' (EC), with the detail being provided by regulations made under that section, namely, the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014. They provide in effect that within the period of three months from the act complained of, or the end of the period referred to in section 123 above if relevant, EC must start, doing so then extends the period of time bar during EC itself, and time is then extended by a further month from the date of the certificate issued at the conclusion of conciliation within which the presentation of the Claim Form to the Tribunal must take place. Discussion

[36]The Selkent principles, as they have become known being the matters referred to in the case of that name set out above, are I consider a good starting point for consideration of whether or not to allow amendment. They are not exhaustive but provide a framework for consideration of the issues that arise. I shall deal with each remaining proposed new claim in turn. (i) Nature of amendment

[47]There is one aspect of the amendment that requires separate comment initially, which is in relation to what are referred to as procedural matters, and the second in the list of claims on page two of the amendment application. That is within the terms of the present claim. There is no need for that amendment. That was accepted by Dr Gibson.

[48]For the remainder that are opposed I considered first of all the discrimination claims, and in that regard whether there was a causative link with the original Claim Form, which refers only to unfair dismissal and breach of contract. There is in the Claim Form no reference to any protected characteristic or any claim under the 2010 Act. The various discrimination claims are all therefore entirely new claims. They are also very different claims in law to those that were in the claim form. They require different findings in fact. There are five separate protected characteristics the claimant seeks to rely on. Evidence would be required on at least some of them, both in respect of the claimant herself such as in relation to the religion or belief founded on, which she says is because she is a Catholic, and status as a disabled person under the 2010 Act, and also on any actual or hypothetical comparators for a claim of direct discrimination. Evidence would be required of the provision, criterion or practice founded on for the claim of indirect discrimination, and why that created a disadvantage. Evidence of the acts founded on which are said to amount to harassment related to one or more protected characteristic would be necessary as would evidence of the protected act and the reaction to that, here the dismissal, on which a Tribunal could find that that was because of that act so as to amount to victimisation. That would be required separately for each protected characteristic.

[49]All of these matters of evidence would be liable to be very different, or entirely unnecessary, for the claims of unfair dismissal or breach of contract made to date, for which there is at best very little pleading, if any pleading for such issues. Whilst the requirement for pleading was described by the Court of Appeal in Parekh v London Borough of Brent

[2012] EWCA Civ 1630

as “minimal”, the EAT has described matters somewhat differently in two other cases, being those on which the respondent founds. In Chandhok v Tirkey

[2015] ICR 527

, the EAT said: "The claim, as set out in the ET1, ……serves not only a useful but a necessary function. It sets out the essential case. It is that to which a Respondent is required to respond. A Respondent is not required to answer a witness statement, nor a document, but the claims made – meaning, under the Rules of Procedure 2013, the claim as set out in the ET1."

[50]In Scottish Opera Ltd v Winning

UKEAT/0047/09

, the EAT stated: "Clear and accurate pleadings are of importance in all cases, but particularly in discrimination claims. It is essential that parties seeking permission to amend to introduce such a claim formulate the proposed amendment in the same degree of detail as would be expected had it formed part of the original claim; and tribunals should ensure that the terms of any such proposed amendments are clearly recorded".

[51]The amendment does not give adequate notice of such matters, and further detail would in any event be required. But that is all in the context of new claims which are, for reasons I shall come to, out of time. These are all factors strongly suggesting that the amendment should be refused. I also take into account the earlier case and its outcome both on jurisdiction and the merits. Whilst I do not consider that the principle of res judicata operates, as the context is now a dismissal, there is nothing in the amendment to explain why the decision to dismiss was itself discriminatory, and on what basis for each protected characteristic.

[52]There is however a potential for difference to that analysis in relation to the claim as to protected disclosures, as that is a claim within the ambit of the claim of unfair dismissal. It is not therefore an entirely new claim, as has been explained by the EAT in Pruzhanskaya v International Trade & Exhibitors (JV) Ltd

UKEAT/0046/18

. There an unfair dismissal claim was commenced in time, and the claimant sought to add by amendment a claim under section 103A. The EAT said this in relation to that section: “It does not create a separate head of complaint to which a separate time limit applies. It is an aspect of the right not to be unfairly dismissed under Part X of the 1996 Act. The Claimant had brought an in-time complaint of unfair dismissal; I do not think that alleging a further potential reason for dismissal, whether it be an “ordinary” reason such as conduct or an “automatic” reason such as the making of a protected disclosure, involves a new complaint with a new time limit.”50. In a sense it is a subset of an unfair dismissal claim, in which there can be a finding of automatic unfair dismissal and where section 98(4) is not engaged if the reason is automatically unfair. Evidence would however be required as to what protected disclosure was said to have been made, when, how, to whom, and in what circumstances. To enable that evidence to be led some form of fair notice to the respondent would be required. That was not provided in the amendment itself, and required to be explored in submission, which was done in accordance with the overriding objective. What I consider was material in this context is that the respondent accepts that in the letter setting out the disciplinary charges, on which the dismissal later operated, was an allegation in relation to the Chair Incident and that the timing of the photograph was dishonestly changed so as to fall after “whistleblowing”, which appears to be a reference to a disclosure said to have been made on behalf of the claimant on 17 September 2010 by an email from Mr Clark. That email was one of the documents provided by the claimant in an email on 15 November 2021, and may well have been seen by the respondent earlier in the disciplinary process. It appears to be a report of an alleged assault by a male member of staff on a younger female member of staff. It states what it states, and argument can be presented for or against it being a protected disclosure. It may not therefore require much if any additional investigation. The third matter in the claimant’s list of disclosures referred to was an email and discussion about the Chair Incident. The other aspects of the disclosures were not I consider set out with the same clarity. They include a form of diary entries, but what to take from them is not clear, recordings said to have been made over a period of about a year, where again what is relevant within them is not clear, and cards sent to the claimant which has already been litigated in the context of a harassment claim. The diary entries and recordings are of the order of ten years old where investigation of them, and the circumstances surrounding them, is liable to now be very difficult at best, and quite likely to be impossible. Time limits

51. There is an issue raised over timebar. It is not a simple matter to address. It does not arise in relation to the section 103A claim for the reason explained in authority. It does however potentially arise in relation to the discrimination claims. They are outwith the terms of section 123 of the Act unless it can be determined that it is just and equitable to allow them to proceed. The relative hardships suffered by the parties is relevant in the assessment of what is just and equitable for the purpose of section 123. There is clearly potential for hardship to a respondent in seeking to investigate and defend new claims made after such a length of time, and also in the context of there having earlier been a claim by the claimant against the respondent determined in favour of the respondent, with some of the issues in that claim found to have been outwith the Tribunal’s jurisdiction on the basis of timebar. That prejudice is set against the loss of claims that the claimant wishes to pursue if the amendment is refused, but also where the claims of unfair dismissal and breach of contract are to proceed in any event, and where an earlier was addressed as outlined above. 52 The reason for the delay I did not consider sufficient. Firstly, if the claimant intended to await the result of the appeal that would suggest not making any claim at all, but she did. She decided that that claim should only be for unfair dismissal and breach of contract, with the advice she had. If she was to make a claim, including within that claim those claims she may wish to make was clearly important. It had been raised in the earlier case, where jurisdiction was an issue. Mr Clark is not a qualified lawyer, but is an experienced and senior trade union official. The Claim Form is set out clearly and professionally, indicating someone with experience and no little skill in doing so. Secondly, the appeal outcome was known in early May 2021. At that stage it was, or ought to have been, obvious that if discrimination claims were to be pursued quick action to seek to amend was necessary. Waiting for legal advice and support that never came was not appropriate. The claimant was able to frame the amendment herself, and there was no reason why that could not have been done in May 2021. It was left for a period of about six months. There was no mention of any change of the nature of the case in the Preliminary Hearing held on 17 May 2021. (ii) Timing and manner

[54]The application followed the earlier Preliminary Hearing, as just described, which set out a draft List of issues. No change to that draft list was suggested. The application itself was made relatively close to the commencement date of the Final Hearing, being one calendar month from its first day, against a history of a lengthy sist and an agreement that the case would be complex involving large amounts of documentation. That late making of the amendment leaves very little time for proper investigation of the factual matters that arise from it. The application is also lacking some important details, such that if it were to be allowed firstly further particulars would require to be given of the discrimination claims in particular, but also those aspects of alleged disclosures beyond the two emails I have referred to, so that the respondent had fair notice of the case it had to meet, and then secondly it be given time to investigate the same, and to respond in its own pleadings.. That would in turn almost certainly require the adjournment of the Final Hearing, and also when new dates are fixed to allow a longer period of time for that. Doing so would add to the delay in a claim that is already one nearing 18 months in age, and to the cost. (iv) Analysis

[55]The above are not exhaustive factors. I also considered the situation as a whole. It did not appear to me likely that the discrimination claims sought to be made by the proposed amendment had reasonable prospects of success. There were five different protected characteristics relied upon, for four different claims under different sections of the Act, but no explanation as to why a finding of direct discrimination was possible, what provision, criterion or practice was engaged for the indirect discrimination claim, or why any harassment, if that did occur, was related to each of those protected characteristics.. If one assumes that the protected act was the taking of the earlier claim that was known at the time of the Claim Form in these proceedings being presented, the Claim Form itself refers to a Review, that Review recommended an investigation, that investigation was undertaken after which there was then a disciplinary process. There must be some factual basis alleged from which a finding of discrimination can properly be made. In relation to the protected disclosures claims, the amendment does not set out specifically what they were, but in oral submission the claimant has referred to them largely being made in or around 2010, and therefore approximately ten years before the dismissal. It did appear to me at the least surprising that any of those issues of alleged disclosures were not raised in the Claim Form itself, but that the Claim Form specifically stated that it was making claims of unfair dismissal under section 94 of the Employment Rights Act 1996, therefore not mentioning section 103A, and breach of contract. I take into account that Mr Clark was not a legally qualified representative, but the Claim Form is fully pled, and appears to have been prepared by someone familiar with Tribunal practice and procedure. There is also reference to the claimant having, at least during her employment, access to legal advice and to solicitors writing on her behalf in relation to a request to postpone a disciplinary hearing. I also take into account that the claimant had earlier litigated some issues against the respondent, and in respect of that all bar one was held to have been outwith the jurisdiction of the Tribunal. She had legal advice from a solicitor when presenting that Claim, and at the Preliminary and Final Hearings. The Preliminary Hearing included consideration of addressing allegations in the period August 2006 to July 2016, and issues as to the cogency of the evidence. It also addressed the failure to commence a claim earlier despite having access to trade union and legal advice, a comment about considering a claim for detriment under section 47B of the Employment Rights Act 1996 in 2017 which did not materialize, and that it seemed to the Judge that a conscious decision had been made not to raise proceedings. That having been her experience, she will, or ought reasonably to, have been aware both of the possibility of claims of discrimination or as to public interest disclosures, and timelimits to do so. Set against all that however is the fact that the respondent referred to whistleblowing in its letter setting out the disciplinary charges, which is I consider significant in this context.

[56]No one factor is determinative. It appeared to me taking account of all the circumstances that the balance of hardship and prejudice favoured the refusal of the application to amend, save in two respects under section 103A as I shall come to. The prejudice to the claimant is that she would be unable to pursue several new and separate discrimination and other claims which in relation to those of discrimination are, on the face of it, out of time by a considerable period, and it appears to me not just and equitable to hold it within the terms of section 123. That is not determinative but is I consider a strong factor against allowing the amendments in that regard. There is no real causative link with the Claim Form for those claims, it is in each case an entirely new claim, and one where there is hardship on the respondent in having to investigate and defend both an entirely new claim in each case. That causes material prejudice to the respondent. The prejudice to the claimant is very limited firstly as she has other claims she is making, and secondly as the discrimination claims do not I consider have other than little reasonable prospects of success at best. To allow them would involve material cost, and most likely material delay. Taking into account all the circumstances I consider that it is not in accordance with the interests of justice to allow the amendment for the discrimination claims.

[57]In so far as the claim of protected disclosures is concerned, whilst that is within the ambit of an unfair dismissal claim and not out of time that is not determinative. The amendment raises new and discrete issues of fact late in the day, in a manner that would lead at least to a measure of increased cost. The greater the extent of the amendment allowed, the greater the potential for that cost to be higher, and for delay. It is liable to involve issues of cogency of evidence as was addressed in the Preliminary Hearing in the earlier claim, for all but two of the alleged disclosures where they are founded on an email. Each of the other aspects of the alleged disclosures are historic. They would not be easy to investigate given the passage of time, and the evidential deficit that is almost certain to result from that. These are all material levels of hardship for the respondent. No adequate reason for the delay in making this application has been provided, and no good explanation as to why the claims now made were not made timeously, and that could have been within the Claim Form, has been provided. I consider that it is in the interests of justice to refuse the application to amend in so far as it seeks to add new claims for discrimination.

[58]The position is different I consider in respect of two of the alleged protected disclosures said to found a claim under section 103A of the Employment Rights Act 1996, which is in relation to an email sent by Mr Clark on 17 September 2010 which the claimant has provided a copy of, and a disclosure said to have been made to Mr Cunningham in February 2011 in relation to the Chair Incident itself. The claimant alleges firstly that the first email from Mr Clark was sent on her behalf, secondly that it is a qualifying disclosure, and thirdly that it is a protected disclosure. It is the terms of the email that she relies on in that regard, and her position is that it is following that email that the Chair Incident occurred as a reaction to her doing so, and that that incident was in December 2010. That is a specific matter, germane to the disciplinary allegation, and one where the hardship and prejudice to the respondent is limited. The disclosure is within the terms of the email itself, and questions can be asked, and submissions can be made as to whether or not that is protected in law, or was so at the time it was made. The claimant alleges that she disclosed the Chair Incident in February 2011. I have not seen the email to Mr Cunningham, or have not been able to identify it at least from the material sent to me to date. It appears to me however that it is germane to the issue given the nature of the disciplinary allegations made against the claimant. The respondent itself appears to found on her descriptions of the Chair Incident as examples of dishonesty. That she told them about it on at least some occasions does not appear to be in dispute. It ought to be possible for the claimant or her advisers to find that email and send it to Dr Gibson. The claimant will require to provide the respondent with that email if she wishes to found on that alleged disclosure, and should do so as soon as possible. The same evidential matters as the first email, as to whether or not it is a protected disclosure, can then be addressed. I consider that that does not cause undue hardship or prejudice to the respondent, who have fair notice of what is said to be the but that to allow evidence of what the claimant says was also an oral discussion, given the passage of time of over ten years, would do. I have therefore restricted the permitted aspect of that alleged disclosure to the emails referred to.

[59]The issues that then arise are not just whether there was a protected disclosure in each case, but also whether that was the sole or principal reason for dismissal. I consider that fair notice of that argument is given. The reason for dismissal is a matter that the claimant is entitled to challenge in her unfair dismissal claim under section 94 in any event. The onus of proof is on the respondent to prove the reason, and that it was potentially a fair one, under section 98(1) and (2). Evidence that the reason was other than the respondent alleges is therefore potentially admissible. The reason for dismissal is a matter peculiarly within the knowledge of the dismissing officer Mr Wallace. If that reason was not solely or principally the alleged disclosures or one of them, the section 103A claim must fail. The claimant also alleges that an email entered in some form of diary was sent in October 2011 to the effect that a way be found to dismiss her. Whilst it is not at all obvious that, if there was a protected disclosure in September 2010 or February 2011, that would be the reason or principal reason for the dismissal in March 2021, I consider that there is sufficient to make it in the interests of justice to allow the amendment to be received, to that limited extent. I do so firstly given the authority of the EAT to the effect that adding a section 103A claim to one under section 94 is not a new claim, nor one to which time bar applies, secondly that the respondent accepts that in the letter setting out disciplinary charges the respondent itself referred to “whistleblowing” as the rationale for the claimant dating the Chair Incident in December 2010, which they regard as dishonest, and their position also that the Chair Incident itself was dishonestly described by the claimant as an assault on her when they claim it was consensual, and thirdly that in seeking to balance the respective hardships and injustices to the parties it is in accordance with the interests of justice to allow the claimant to found on two particular alleged disclosures made in writing, on that basis, for the purposes of the section 103A claim. That is so as the treatment in law of that claim is not the same as that for a section 94 claim. If there is a breach of section 103A the dismissal is automatically unfair. The test under section 98(4), assuming that that stage is reached, is entirely different. If there were to be a finding of automatic unfairness that may have consequences for liability, and be relevant for remedy, both as the remedy is not limited but also as the finding may affect issues such as contribution, or whether or not a fair dismissal might have occurred if there was a different procedure. In this particular respect I consider that the relative hardships and prejudices favour granting the amendment to this limited extent.

[60]For the avoidance of doubt the other alleged disclosures on which the sought to rely are not within the amendment allowed, as to do so would lead to undue hardship and prejudice for the respondent which outweighs the hardship and prejudice to the claimant. The details of the alleged disclosures do not I consider allow investigation without such hardship and prejudice. The first in the list of disclosures is a set of recordings, but they go back to 2009 and would require substantial attempted investigation many years after the event. The content and relevance of the recordings is not clearly set out. The second matter is that which I have allowed. The third was allegedly reported in February 2011 but is related to the Chair Incident itself. The fourth is in relation to cards, the subject of the earlier claim when the claimant did not, at that stage, make any claim as to detriment under section 47B. The claim was dismissed. That is not conclusive, but does not favour allowing further enquiry in relation to those issues. The fifth and sixth disclosures are I consider vague assertions where identifying what is said to have been disclosed and why that is a qualifying and protected disclosure will lead to material evidential difficulties for the respondent. Save for the said two emails therefore I consider that the other disclosures alleged to have been made are not specified sufficiently clearly and made in circumstances which the respondent can properly investigate and respond to without undue prejudice and hardship. Those aspects of the section 103A claim sought to be added by amendment are therefore refused, as not being in accordance with the overriding objective.

[61]I would also state for that avoidance of doubt that no claim is made, nor permitted to proceed, for any detriment on the ground of having made a protected disclosure, being any matter short of dismissal under section 47B of the 1996 Act as that is time-barred, and a different claim in law to that under section 103A, was one referred to in the earlier Preliminary Hearing, and one where the prejudice and hardship to the respondent outweighs that to the claimant. Conclusion

[62]The application for amendment made by the claimant in relation to adding claims under section 103A of the Employment Rights Act 1996, and claims under the Equality Act 2010, is therefore refused, save in relation to the alleged disclosure from the email dated 17 September 2010 and the email sent in February 2011, provided that the claimant produces that, which is permitted to proceed as the basis of the section 103A claim. The application in respect of procedural unfairness is refused as unnecessary.

[63]As the claim is now to include one under section 103A of the Employment Rights Act 1996 the Final Hearing requires to be heard before a full Tribunal, unless parties agree otherwise. The administrative staff of the Tribunal will seek to make arrangements for that for the Final Hearing.

Facts

[64]The social media comments, police investigation and internal disciplinary process caused Mr Anderson substantial anxiety and distress. On 10 November 2018 his wife emailed the First Minister to state that the last few months had been “a living hell” for them, and that the claimant had been harassing and bullying them, including by a petition on a website called Change.org.

[65]On 29 November 2018 the claimant wrote an email to the First Minister, Permanent Secretary and Director General Organisational Development and Operations in which she objected to the presence of Mr Gregor McKenzie at a meeting proposed to be held with HR and her saying “I don’t ask for sympathy nor do I play on your heart strings but on the respect for a broken woman not to have to face her abuser. It is like having to sit with a rapist while he gets away with the crime is the only way I can explain it.”

[66]Mr Hart was requested by Ms Sue Macdonald of HR in the respondent to provide a second report following the decision being made by Ms Fraser. He was informed by Ms Macdonald that the conclusion of the deciding officer, Ms Fraser, was that the said photograph had been likely to have been taken in August 2009. The terms of reference were to investigate the date on which that photograph had been taken, specifically whether it had been on 16 December 2010 as the claimant alleged, or 10 August 2009 as Mr Anderson alleged and Ms Fraser concluded was likely, and whether emails the claimant alleged she had sent to Mr Cunningham and Mr Macgregor in the period February to April 2011 were genuine “to enable people directorate to consider whether DF [the claimant] has a case to answer”.

[67]Ms Macdonald wrote to the claimant on 25 January 2019 to inform her of that investigation, and that a meeting with him had been arranged for 28 January 2019 under the respondent’s disciplinary procedure.

[68]Mr Hart commenced an investigation. He decided that he wished to have expert evidence to assist him, and secured authority to do so. The HR department of the respondent recommended the expert to instruct. He instructed Mr J Borwick of KJB Forensic Computing, who prepared his own report. He send a jpeg image of the photograph which had some data but not all data that the original photograph contained. Mr Borwick later attended at the Campbelltown office of the respondent, where Mr Anderson worked. He spoke to Mr Anderson about the photograph. Mr Anderson provided him with access to his work computer which allowed Mr Borwick to access the server on which an electronic file containing the said photograph was, Mr Anderson said, located. Mr Borwick accessed the file and took a copy of it by use of a zip file. He later examined the records of the same. Those records included file data in relation to the photograph which stated that it was created on 10 August 2009 at 20.04, and that it was last modified on the same date at 20.38. There was separate data with regard to the device on which the photograph had been taken, called EXIF data. Mr Borwick noted that the Global Positioning System (GPS) data for the photograph did not show the location of the office where it had been taken. He conducted a test on another photograph taken on the same phone, which was a version 3, and found that its GPS data was also inaccurate. He concluded that that was because the phone did not use accurate GPS data. He did not consider that the inaccuracy of the GPS data was material.

[69]EXIF data is easy to manipulate, so as to change the date on which a photograph was recorded as having been taken. The file data obtained from the server, which contained the photograph, is not as easy to manipulate. File data includes a date of creation. If that date is changed, that change may be evidenced by an amendment to the last modification date, and an amendment to the header of the records, but that is not always the case..

[70]Mr Borwick considered that the data he had seen established beyond doubt that the photograph had been taken on 9 August 2009. He also considered that it had been moved, in the sense of a transfer from the mobile telephone on which it had been taken to the server such that the server version was the principal record of the photograph rather than that there had been the taking of a copy and transferring that copy to the server whilst retaining the principal on the phone. Mr Borwick was not able to ascertain when the photograph had been moved from the mobile telephone.

[71]He also considered emails that the claimant alleged she had sent in relation to the incident. One was alleged to have been sent to George Cunningham her manager on 11 February 2011 at 13.48. It stated, she claimed: “Hi George. Just to keep you updated. Since the 16.12.10 when Reid and Jody bound me to the office chair in Alison’s room. Reid restrained me and Jody taped me to the chair and then Reid placed tape over my mouth and told me that this is what happens when you speak about the boys. Jody took a picture of this. I have not been comfortable in the office. …” Reference was made to a “sick line” attached. It was alleged that Mr Cunningham replied at 1.48pm “….. I will speak to Duncan about what happened and I will have a word with Reid and Jody. I am sure that they meant no harm and that was the boys just being boys”.

[72]The claimant alleged that she had replied at 2.50pm “Hi George. I don’t think that it is acceptable that it is just the boys being boys. Even [sic] since I stood up for Alison a lot of things have been happening and Reid has said a lot more to me. They have been trying to work out who reported the incident about Pete and Derek. I know we are not allowed to talk about this but I should not have to put up with such treatment at work.”

[73]One was alleged to have been sent to Mr Cunningham’s manager, Mr Macgregor, said to have been sent on 12 April 2011 at 8.17am. It was said to have stated “Hi Duncan. Did you manage to speak to Reid and Jody about the 16.12.10 when they restrained me to the chair in the FA’s room. Things are getting out of hand here. I look forward to your response. When I first told you you said that you would deal with it right away and when I came back from Christmas break there would be no more trouble”.

[74]She alleged that he replied at 9.01am that day “Thanks DeeAnn. There are several issues here which I will have to consider. I plan to visit Scrabster within the next 2 weeks and will speak then.”

[75]Mr Hart sought to arrange a meeting with the claimant. She wished to know details of the questions she would be asked before doing so, and she cancelled a meeting that had been planned for 28 January 2019. They did not meet. In due course he sent a series of questions in writing to the claimant and her trade union representative, to which written responses were provided, including by Mr Clark in an email on 7 March 2019. In that message Mr Clark said that his personal recollections of being told by the claimant about the assault issue were not strong, and that although the claimant had sent him the photograph before the Appeal hearing in April 2012 “it was just in so much else and not fully appreciated.” Mr Hart also interviewed Mr Cunningham, and Mr Anderson again. Mr Anderson provided him with an impact statement setting out the effect of the allegations on him, including an attendance at a police station voluntarily for interview. Mr Hart sought to interview her former partner Mr Doug Munro. Those attempts did not succeed. He sought to arrange a meeting with him in June 2019.

[76]Mr Hart was then instructed by HR in the respondent to conclude his investigation without waiting for evidence from Mr Munro, and on 9 May 2019 emailed the claimant and Mr Clark giving them one week to submit a final written document with any points they wished him to consider. They did not do so. Mr Clark had wished there to be a further meeting, and had expected that to take place in June 2019.

[77]Mr Hart then prepared a detailed report, dated May 2019 (no specific date was provided). That report concluded that the photograph had been taken on 9 August 2009. It attached a number of appendices including notes of interviews, which were reasonably accurate, and the report from Mr Borwick, who said firstly that the photograph had been taken on 9 August 2009 and secondly that he had not been able to verify the said emails that the claimant alleged she had sent to Mr Cunningham and Mr Macgregor, and that the only way to examine emails correctly was to do so as it was received in the recipient’s inbox. He stated that doing so “would seem a prudent course of action”.

[78]Mr Hart did not seek to recover the said emails either himself or by request to the IT department of the respondent.

[79]The general practice of the respondent at about that time was to retain emails for three years.

[80]Mr Hart issued his report by email to Ms Macdonald, which email was not before the Tribunal.

[81]On each of 11 May and 4, 10, 14 and 15 June 2019 the claimant’s sisterin-law Ms Sherrie Fitzpatrick made an entry on a website called Change.org with regard to the claimant and her circumstances.

[82]The respondent received an occupational health (OH) report from its adviser Dr Glen on 21 June 2019. It provided an opinion that included that the claimant was not fit to carry out her normal duties, that the claimant was likely to be a disabled person under the Equality Act 2010, that the claimant had symptoms of Post Traumatic Stress Disorder and depression which would be likely to last indefinitely without treatment, and that if attendance was required of her at a disciplinary hearing “there would be a significant risk of her psychological health being adversely affected.”

[83]The respondent wrote to the claimant on 19 August 2019 with regard to the OH report, and stated that the respondent considered the claimant absent from 10 July 2019 but that she would be paid full pay until the date of the letter.

[84]The respondent wrote further to the claimant on 30 August 2019 noting that the GP fit notes were that the claimant could return to work with support from the employer but that the respondent had concluded that she was not fit to return to work.

[85]The claimant was suspended from work on medical grounds on 2 September 2019. The reason given was what was said by the respondent to be conflicting medical advice from the OH report and subsequent GP fit notes, and a concern that as the claimant alleged to have suffered injury at work the respondent could not put her in the position of being at risk of suffering worsening ill health.

[86]On 1 October 2019 the respondent wrote to Dr Glen seeking a further report. The letter noted that the respondent had received fit notes from the claimant’s GP which advised that she was fit for work. It raised a number of issues including that the GP had advised that she was fit for work but not to attend a disciplinary hearing.

[87]On 3 October 2019 the respondent wrote to the claimant and set out a series of allegations against her. It included the four charges intimated to her earlier, and new charges in relation to the incident of being taped to a chair. Those new charges were set out in charge 5 as follows: “1. On several occasions as summarised at annex A and as detailed in the accompanying documents, you made false statements about the chair incident, in particular that: the incident occurred in December 2010; and that it was an assault on you because you were a whistleblower in relation to an incident in September 2010. 2. These false statements were made publicly, including to the employment tribunal whilst you were on oath, and to the media on repeated occasions. For details of the impact of this conduct on SG [the Scottish Government] and Marine Scotland see annex B and accompanying papers. 3. You made false statements to the media about SG colleagues, in particular Reid Anderson. See annex A and related media documents including in accompanying papers. Reid Anderson was then subject to offensive and threatening comments on social media. For details of the impact on him, see annex A and accompanying papers. 4. In March 2018 you provided a false account of the chair incident to the IO [Investigating Officer, Mr Hart] in his initial investigation and repeated this false account in March 2019 in your statement to his later investigation. 5. In March 2018 you presented to the IO emails purporting to be sent by George Cunningham on 15 February 2011 and by Duncan Macgregor on 12 April 2011 which had been deliberately created or altered by you at an earlier date to refer to the chair incident as having occurred on 16 December 2010. In March 2019 you falsely stated to the IO that these emails were genuine. 6. You or a person acting on your behalf gave these emails to the media to support you false account of the chair incident. 7. You or a person acting on your behalf published on the website Change.org derogatory and offensive statements about named SG and Marine Scotland colleagues including Reid Anderson, John Bruce, Derek Yuille, Peter Fenwick, Duncan Macgregor and Carol Heatlie. This continued to happen despite an explicit warning to you on 16 May 2016. This had a significant negative impact on some of those staff in particular Reid Anderson and John Bruce. See Annex B. 8. In March 2018 you made false statements to the IO about having no knowledge of how information about the chair incident, including the photograph, came to be in the media. You repeated this false statement to the IO in March 2018. 9. On 29 November 2018 in response to a request from HR to attend a meeting to discuss matters related to the chair incident, you sent an email to the First Minister, The Permanent Secretary and Director General, Organisational Development and Operations, in which you objected to the presence of your line manager, Head of Coastal Operations Gregor Mckenzie, at a meeting with yourself and HR and stated ‘I don’t ask for sympathy and nor do I play on your heart strings but on the respect for a broken woman not to have to face her abuser. It is like having to sit with a rapist while he gets away with the crime is the only way I can describe it.’ The language used in this statement was derogatory and grossly offensive about your manager and completely inappropriate in the circumstances, namely responding to a meeting invitation.”

[88]The letter referred to policies, which were the SG’s Standards of Behaviour, the Civil Service Code, the Data Protection Policy, the Confidentiality and Official Information Policy, and the Counter Fraud Policy, together with detailed parts of the said policies. The claimant was informed that she had a right to be accompanied at the hearing, and that if the charges were held well founded the penalty may include dismissal.

[89]On 4 October 2019 a copy set of disciplinary papers was sent to the claimant’s home address, and acknowledged by her on 9 October 2019. The papers subsequently went missing from the claimant’s property.

[90]On 21 November 2019 the respondent received a further OH report. It included that the claimant was now fit to phase back to her full and normal duties, but added that “I am of the opinion that, although the lady is now fit to return to work her Treating Psychiatrist is of the opinion that she would require at least the first 10 sessions of EMDR before being able to meet with management for a disciplinary hearing (ie in about 2.5 months’ time)

[91]On 4 December 2019 the claimant wrote to the First Minister asking for an independent investigation and a meeting with her.

[92]The respondent suspended the claimant on full pay with effect from 13 December 2019 by letter of that date, pending a hearing into disciplinary allegations.

[93]On 15 January 2020 the respondent wrote to the claimant in relation to the disciplinary allegations, and arranging a hearing for 19 February 2020. The letter addressed what the respondent said were inconsistencies in the OH reports, and inconsistencies with other relevant information including the Judgment of the Employment Tribunal in August 2018 and the finding by the deciding officer in relation to the allegations against Mr Anderson that it was likely that the said photograph had been taken in August 2009. The letter explained that if the claimant did not attend the hearing it may proceed in her absence, and that a set of papers would be hand-delivered to her by two members of staff.

[94]On 30 January 2020 the claimant’s psychiatrist Dr Ali wrote a letter advising that the claimant be allowed a period of six months to stabilise before going through a stressful hearing. He referred to an “upcoming Employment Disciplinary Tribunal”.

[95]On 7 February 2020 Ms Lyndsey Cairns of the respondent emailed the claimant to remind her that any adjustments she considered were appropriate for the hearing to take place would be considered, stated that there had been a decision to proceed with the hearing, referred to Dr Ali’s letter, and expressed the view that “there is no certainty that you would attend a hearing, even in six months’ time.”

[96]On 17 February 2020 the claimant’s solicitors emailed the respondent to argue that the hearing should not proceed. Mr Clark the claimant’s trade union representative emailed the respondent shortly before the hearing to similar effect.

[97]The hearing took place in the claimant’s absence before Mr David Wallace, who decided that it should proceed notwithstanding the applications for adjournment. He was accompanied by Ms Kim Hunter of HR. Apart from an occasion giving the claimant training and answering a query from her briefly she had not been involved in with the claimant to any extent.

[98]Mr Wallace set out his decision in a letter dated 24 March 2020. He explained in that letter that he had decided to proceed notwithstanding the submissions for it to be delayed, and that he accepted the assessment of the respondent’s HR department that it would not be appropriate to postpone the hearing any longer. He held that charges 1 – 4 should not have a decision made on them given the passage of time.

[99]In respect of Charge 5 and its 9 sub-charges. Mr Wallace found that all of them had been established, and that they amounted to gross misconduct. He held that it was absolutely clear from the evidence of Mr Borwick that the photograph had been taken at 20.04 on 10 August 2009 and not in December 2010 as she alleged. There was reference to other evidence supporting that conclusion, including that of Mr Fenwick who had heard of the incident whilst working at the office, which he had left by September 2010. He noted that Mrs Richards had said that the said photograph was the subject of humour and high spirits in which the claimant had participated. He said that the claimant’s evidence of the said incident was contradictory and not believable. It was not reported at the time and Facebook entries show that the claimant was on friendly terms with Mr Anderson on 30 December 2010. All of the charges were held to have been established for reasons set out in that letter.

[100]Mr Wallace set out a number of breaches of policies that he believed had occurred. He held that the charges that had been found established amounted to gross misconduct. In relation to penalty he considered the length of service and disciplinary record, but concluded that dismissal without notice was appropriate. He addressed an allegation that the claimant was a whistle-blower, and denied that the decision was made because of that. The claimant was informed of her right of appeal.

[101]The letter was delivered to the claimant by two members of the respondent’s staff on 26 March 2020.

[102]The claimant intimated an appeal through letter from her trade union representative Mr Clark on 20 April 2020. It attached a letter to him from the claimant dated 17 April 2020. Mr Clark and Ms Lyndsey Cairns of the respondent commenced email correspondence with regard to the appeal arrangements. Mr Clark argued that the claimant was not fit to attend an appeal hearing.

[103]On 7 April 2021 an appeal hearing took place before Mr Neil Rennick, with Ms Julie McFadyen as HR representative in attendance, and another member of HR to act as note-taker. The claimant attended with Mr Clark. All attended virtually. A note of that meeting is a reasonably accurate summary of it. The meeting took approximately three hours. The meeting continued on 8 April 2021 for over two hours. A note of that meeting is a reasonably accurate summary of it.

[104]About a week prior to the meeting the claimant had produced a very substantial volume of documentation for her appeal. Mr Rennick was also provided with a very substantial volume of documentation by the respondent, being the documents before Mr Wallace, and his letter of decision, together with the claimant’s appeal. Mr Rennick read all of the documentation he had been provided with carefully.

[105]On the first day of the hearing Mr Rennick clarified with the claimant and her trade union representative the grounds of appeal she wished to pursue. He allowed the claimant to make whatever comments on matters that she wished to. During that day she produced an email from a Mr Stansbury with comments on how data on a file for a photograph could be easily amended. Mr Standbury also expressed the opinion that the inaccuracy of the GPS data was such that the data was not reliable generally.

[106]Mr Rennick considered that email overnight. On the second day of the hearing Mr Rennick sought clarity on the documentation relevant to the grounds of appeal, and what the claimant’s position was in relation to the date of the photograph, and the circumstances in which she claimed the data had become manipulated. He sought to understand the claimant’s position on each of charges 5.1 – 5.9.

[107]Following the hearing Mr Rennick took some time to consider all that had been raised with him.

[108]Mr Rennick issued his decision on the appeal by letter dated 4 May 2021. He set out a detailed response in relation to the appeal in an annex. His conclusion was that it was valid for Mr Wallace to have proceeded in the absence of the claimant or her representative. He considered that the evidence provided by the claimant as to the chair incident was not credible or reliable. He did not consider the claimant’s evidence as comprehensive as the report from Mr Borwick. He did not believe her account of how the data had been manipulated on the file for the photograph. He considered that it did not match their subsequent actions and that a much more likely and compelling explanation was that provided by Mr Borwick. He held that untrue allegations had been made by the claimant and upheld charges 5.1, 5.2, 5.3 and 5.4. He held that there had been falsification of emails by the claimant, charge 5.5 given the other findings and the evidence of Mr Macgregor being in the office on the day an email was allegedly sent to him. He held that charges 5.6, 5.7 and 5.8 were also established. The claimant had not denied engaging with the media but argued that in the circumstances she had been entitled to do so. He considered that any civil servant engaging with the media without authorisation is highly unusual, that there were a number of opportunities for the claimant to raise her concerns internally that she had not taken and that the statements made had included false allegations. He also held that only the claimant or someone acting on her behalf could have provided the material produced online. He held that the sharing of information with the media caused reputational harm to other individuals, Marine Scotland and the Scottish Government. He held that given the claimant’s circumstance charge 5.9, whilst well founded factually, should not be upheld, and he allowed the appeal to that extent. He concluded otherwise that the decision of the disciplinary hearing should be upheld and that the penalty be maintained. He addressed the allegation as to whistleblowing or institutional harassment, and did not uphold either of them for the reasons he set out. Having considered the issue of the penalty he said that he could not agree to adjust the penalty as the claimant proposed.

[109]Prior to the dismissal the claimant had a gross salary of £3,124.64 per month and a net salary of £2,273.20. She was a member of the respondent’s pension scheme. She paid employee contributions of £157.91 per month. The employer contribution was £624.93 per month.

[110]Since the dismissal the claimant has received State benefits. She has not worked in paid employment. She has been certified as unfit for work since her dismissal. She continues to receive treatment for PTSD.

[111]In 2009 - 2010 iphones did not have access to accurate GPS data. If a photograph was taken indoors it sought as location details the mast from which it derived a signal, and provided the location of the mast. When a photograph was at that time taken on an iphone a digital file was created of the image. It had four numbers generated automatically within it. Two sets of data were created, called metadata. One set was file data, in relation to the creation of the file, and had information as to when it was modified and accessed thereafter. The other set was “EXIF” data in relation to the photograph and included GPS data, a time stamp, and information such as the aperture used.

[112]Software programmes existed at about that time which could be searched for on the internet, and then downloaded for free. To change both the file and EXIF metadata two separate programmes would require to be identified, downloaded and used such as “File Changing” and “EXIF Editor”.

[113]Mr Fenwick was dismissed by the respondent following the incident involving Ms Sutherland, and Mr Yuille was disciplined. Both appealed, and the dismissal of Mr Fenwick was overturned, and a lesser penalty given for both him and Mr Yuille, on dates not given in evidence.

[114]The claimant commenced early conciliation on 13 May 2020.

[115]The Certificate for early conciliation was dated 20 May 2020.

[116]The Claim Form for the present claim was presented to the Tribunal on 19 June 2020. Submissions for respondent

[117]The following is a basic summary of the submission made. Dr Gibson sent a written submission which he spoke to orally. He argued that the Tribunal should accept the credibility and reliability of the respondent’s witnesses. He submitted that Mr Hart had undertaken a fair and balanced investigation, and that the argument that the remit should have been wider was not correct given the earlier investigations, the then current Tribunal proceedings amongst other issues. It was very difficult to separate the disciplinary procedure for Mr Anderson with that which followed against the claimant. Mr Wallace had been particularly confident when explaining his decisions both to proceed with the hearing and then to dismiss. Mr Borwick was an expert who had expressed an opinion on when the photograph was taken. He had travelled to view the documents in situ. Mr Watts’s attacks on him were not reliable, nor was the email from Mr Stanbury. Mr Rennick had been very analytical and careful. He was the most compelling witness as he had assessed the claimant’s credibility and reliability directly. He criticised the evidence of the claimant and Mr Clark, and suggested that the evidence of Mr Watts did not extend to the date of the photograph or actual manipulation of data. He then addressed the band of reasonable responses, and argued that there had been a genuine belief in conduct as the reason for dismissal, that there had been a reasonable investigation and that the belief was reasonable. He argued that the procedure had been a fair one, and addressed the decision to hold the disciplinary hearing in the claimant’s absence. He submitted that the claimant had lied about the date and circumstances of the incident, and that the evidence justified the conclusion that emails had been forged. In an ideal world they would have been retrieved but there was evidence that they were only retained for three years. As to penalty there was dishonesty of a most extreme kind, and honesty and integrity were at the cornerstone of the Code. The claimant was indirectly responsible for the police investigation, the internal investigation and the abuse on social media Mr Anderson had suffered. He further argued that there had been no protected disclosures, and although initially he argued that there was no disclosure in the public interest accepted during submission that that matter did not arise given the date of the alleged disclosure. He argued that even if there was a protected disclosure that was not the reason or principal reason for dismissal. On the claim for breach of contract the Tribunal should prefer the respondent’s evidence including from Mr Borwick. The claimant sought re-engagement as her remedy but that was not reasonably practicable. If there was any procedural unfairness a fair dismissal was in any event what would have happened, and further the appeal cured any such defect. Clause 11 of the contract meant that there was no right to notice. He invited the Tribunal to dismiss all the claims. In the written submission made there was reference to authority, some of which are referred to below. Submissions for claimant

[118]The following again is a basic summary of the submission which the claimant gave orally. She described the office as “feral” and had kept a diary of events. Mr Fenwick had thrown a punch at Ms Sutherland and called her a whore, and Mr Yuille had encouraged that. She had reported them to Mr Clark, who had reported it to the respondent on her behalf. There had been bullying and inappropriate behaviour. She had been restrained on 16 December 2010 as a lesson to keep her mouth shut. She believed that Mr Anderson and Mr Paske had been put up to that. She became a target for senior managers. In October 2011 she was threatened with a move from the office and dismissal. Mr Dryden had disciplined her and she had appealed. Ms Heatlie had labelled her a serial complainer. Emails she sent had been read without her knowledge. Emails had been deleted. Matters improved for a few months after she was promoted but then slipped into bullying and harassment. Disciplinary charges were made when her mother passed away. Her father later was on life support and she went to Canada to be with him. She received cards which ended in the Tribunal. She became suicidal and self-harmed. She gave evidence about the restraint of her in the Tribunal hearing. Mr Hart made his investigation and she met him twice and gave written detail by email. She was unable to attend the disciplinary hearing as she was unwell and provided letters to ask for postponement. Further investigations could have been carried out. She made claims under section 103A and 94. Mr Anderson and Mr Paske had lied about the details of the September 2010 incident. Ms Richards said that the claimant could not get rid of Mr Fenwick and Mr Yuille and was now going after Mr Anderson and Mr Paske, showing vengeance. The evidence about Mr Jones being taped to a chair was not consistent. Mr Borwick should have tested the authenticity of the data and the emails. Mr Cunningham had problems with memory. Ms Fraser gave Mr Anderson the benefit of the doubt, and so should she. HR and senior managers took advantage of her poor mental health. There had been a cover up. It was easy to alter metadata. The chair incident was one of many incidents she had been victim to. Reference was made to the case of Jhuti. Law (i) The reason for dismissal

Law

[119]It is for the respondent to prove the reason for a dismissal under section 98(1) and (2) of the Employment Rights Act 1996 (“the Act”).

[120]In Abernethy v Mott Hay and Anderson

[1974] ICR 323

, the following guidance was given by Lord Justice Cairns: ''A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee.” These words were approved by the House of Lords in W Devis & Sons Ltd v Atkins

[1977] AC 931

. In Beatt v Croydon Health Services NHS Trust

[2017] IRLR 748

, Lord Justice Underhill observed that Lord Justice Cairns’ precise wording was directed to the particular issue before that court, and it may not be perfectly apt in every case. However, he stated that the essential point is that the 'reason' for a dismissal connotes the factor or factors operating on the mind of the decision-maker which caused him or her to take that decision.

[121]If the reason proved by the employer is not one that is potentially fair under section 98(2) of the Act, the dismissal is unfair in law. Fair reasons include conduct. (ii) Fairness

[122]Section 98 of the Act provides, so far as material for this case, as follows: “98 General(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 employee held.

(2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment. …………… (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 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.”………………..

[123]The terms of sub-section (4) were examined by the Supreme Court in Reilly v Sandwell Metropolitan Borough Council

[2018] UKSC 16

. In particular the Supreme Court considered whether the test laid down in BHS v Burchell

[1978] IRLR 379

remained applicable. Lord Wilson considered that no harm had been done to the application of the test in section 98(4) by the principles in that case, although it had not concerned that provision. He concluded that the test was consistent with the statutory provision. Lady Hale concluded that that case was not the one to review that line of authority, and that Tribunals remained bound by it.

[124]The Burchell test remains authoritative guidance for cases of dismissal on the ground of conduct in circumstances such as the present. It has three elements(i) Did the respondent have in fact a belief as to conduct?

(ii) Was that belief reasonable?

(iii) Was it based on a reasonable investigation?

[125]It is supplemented by Iceland Frozen Foods Ltd v Jones

[1982] ICR 432

which included the following summary: “in judging the reasonableness of the employer's conduct an Industrial Tribunal must not substitute its decision as to what the right course to adopt for that of the employer; in many (though not all) cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another; the function of the Industrial Tribunal, as an industrial jury, is 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.”

[126]The manner in which the Employment Tribunal should approach the determination of the fairness or otherwise of a dismissal under s 98(4) was considered and the law summarised by the Court of Appeal in Tayeh v Barchester Healthcare Ltd

[2013] IRLR 387

[127]Lord Bridge in Polkey v AE Dayton Services

[1988] ICR 142

, a House of Lords decision, said this after referring to the employer establishing potentially fair reasons for dismissal, including that of misconduct: “in the case of misconduct, the employer will normally not act reasonably unless he investigates the complaint of misconduct fully and fairly and hears whatever the employee wishes to say in his defence or in explanation or mitigation.”

[128]Guidance on the extent of an investigation was given by the EAT in ILEA v Gravett

1988 IRLR 497

, that “at one extreme there will be cases where the employee is virtually caught in the act and at the other there will be situations where the issue is one of pure inference. As the scale moves towards the latter end, so the amount of inquiry and investigation which may be required, including the questioning of the employee, is likely to increase.”

[129]What is required is consideration of that which is reasonable in all the circumstances, as explained in Shrestha v Genesis Housing Association Ltd

[2015] IRLR 399

. In Sharkey v Lloyds Bank plc

UKEATS/0005/15

the EAT explained further that ''…procedure does not sit in a vacuum to be assessed separately. It is an integral part of the question whether there has been a reasonable investigation that substance and procedure run together.''

[130]The focus is on the evidence before the employer at the time of the decision to dismiss, rather than on the evidence before the Tribunal. In London Ambulance Service v Small

[2009] IRLR 563

Lord Justice Mummery in the Court of Appeal said this; “It is all too easy, even for an experienced ET, to slip into the substitution mindset. In conduct cases the claimant often comes to the ET with more evidence and with an understandable determination to clear his name and to prove to the ET that he is innocent of the charges made against him by his employer. He has lost his job in circumstances that may make it difficult for him to get another job. He may well gain the sympathy of the ET so that it is carried along the acquittal route and away from the real question – whether the employer acted fairly and reasonably in all the circumstances at the time of the dismissal.”

[131]The band of reasonable responses has also been held in Sainsburys plc v Hitt

[2003] IRLR 223

to apply to all aspects of the disciplinary procedure.

[132]Although there is an onus on the employer to prove the reason for dismissal, there is no onus on either party to prove fairness or unfairness.

[133]The Tribunal is required to take into account the terms of the ACAS Code of Practice on Disciplinary and Grievance Procedures. It is not bound by it. The following provisions may be relevant: “4. Employers should carry out any necessary investigations to establish the facts of the case….. 9. If it is decided that there is a disciplinary case to answer, the employee should be notified of this in writing. This notification should contain sufficient information about the alleged misconduct or poor performance and its possible consequences to enable the employee to prepare to answer the case at a disciplinary meeting. It would normally be appropriate to provide copies of any written evidence, which may include any witness statements, with the notification… 23. Some acts, termed gross misconduct, are so serious in themselves or have such serious consequences that they may call for dismissal without notice for a first offence….

[134]Whether or not a matter might be regarded as one of gross misconduct has been the subject of authority. It must be an act which is repudiatory conduct Wilson v Racher

[1974] ICR 428

. The question is whether it was reasonable for the employer to have regarded the acts as amounting to gross misconduct – Eastman Homes Partnership Ltd v Cunningham

EAT/0272/13

. If the employer’s view was that the conduct was serious enough to be regarded as gross misconduct, and if that was objectively justifiable, that was a circumstance to consider in assessing whether or not it was reasonable for the employer to have treated the conduct as a sufficient reason to dismiss. A finding that there was gross misconduct does not lead inevitably to a fair dismissal. In Brito-Babapulle v Ealing Hospital NHS Trust

[2013] IRLR 854

the Tribunal suggested that where gross misconduct was found that is determinative, but the EAT held that that was in error, as it gave no scope for consideration of whether mitigating factors rendered the dismissal unfair, such as long service, the consequences of dismissal, and a previous unblemished record. The law in this area was reviewed very recently in Hope v British Medical Association [2021] EA-2021-000187.

[135]When considering the procedure that was followed, a non-statutory Guide issued by ACAS on Discipline and Grievances at Work includes the following comments: “What if an employee repeatedly fails to attend a meeting? There may be occasions when an employee is repeatedly unable or unwilling to attend a meeting. This may be for various reasons, including genuine illness or a refusal to face up to the issue. Employers will need to consider all the facts and come to a reasonable decision on how to proceed” It then lists a number of considerations.

[136]The Guide says the following with regard to investigations “Investigating Cases When investigating a disciplinary matter take care to deal with the employee in a fair and reasonable manner. The nature and extent of the investigations will depend on the seriousness of the matter and the more serious it is then the more thorough the investigation should be. It is important to keep an open mind and look for evidence which supports the employee's case as well as evidence against.” (iii) Appeal

[137]An appeal is a part of the process for considering the fairness of dismissal – West Midlands Co-operative Society Ltd v Tipton

[1986] ICR 192

in which it was held that employers must act fairly in relation to the whole of the dismissal procedures. The importance of an appeal in the context of fairness was referred to in Taylor v OCS Group

[2006] ICR 1602

being a conduct dismissal case, in which it was held that a fairly heard and conducted appeal can cure defects at the stage of dismissal such as to render the dismissal fair overall. (iv) Protected disclosures

[138]The relevant section of the Employment Rights Act 1996 are as follows: “43A Meaning of ‘protected disclosure’. In this Act a ‘protected disclosure’ means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H. 43B Disclosures qualifying for protection. (1) In this Part a ‘qualifying disclosure’ means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— (a) 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, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed” Section 43C Disclosure to employer or other responsible person A qualifying disclosure is made in accordance with this section if the worker makes the disclosure (a) to his employer….. Section 103A Protected disclosures 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 his dismissal is that the employee made a protected disclosure.”

[139]The onus remains on the respondent to prove the reason or principal reason for dismissal, where the claimant has the service for an unfair dismissal claim, Kuzel v Roche Products Ltd

[2008] IRLR 530

[140]The words 'in the public interest' in s 43B(1) were introduced by amendment with effect from June 2013. They are not therefore applicable to a disclosure said to have been made before that date.

[141]The issue of what amounts to a 'disclosure of information', was addressed in Kilraine v Wandsworth London Borough Council

[2018] ICR 1850

, in which it was confirmed that there was no rigid distinction between information and allegations, and that the full context required to be considered. What was necessary was the disclosure of sufficient information. That issue was also addressed in Simpson v Cantor Fitzgerald

[2021] IRLR 238

at the Court of Appeal.

[142]The question of what was the reason or principal reason for dismissal in such a claim was addressed in Eiger Securities LLP v Korshunova

2017 IRLR 115

. The test is not the same as for detriment under section 47B, or in discrimination law, but is to apply the statutory language and ascertain the reason or principal reason for the dismissal. That was later confirmed in Secure Care UK Ltd v Mott EA- 2019-000977. It was held in Beatt v Croydon Health Services NHS Trust

[2017] IRLR 748

, that although establishing the reason requires the tribunal to consider the employer's state of mind when dismissing, the question whether the disclosures were or were not protected is an objective one, to be determined solely by the tribunal.

[143]The law in this area was reviewed by the EAT in Watson v Hilary Meredith Solicitors

UKEAT/0090/20

. A Tribunal must be careful that arguments as to the reason or principal reason for dismissal being other than for making any protected disclosures are not abused. The Tribunal must also be alive to the possibility of a procedure being manipulated so as to cause a dismissal by someone ignorant of all material facts, Royal Mail Group v Jhuti

[2020] IRLR 129

. (v) Breach of contract

[144]A claim in respect of breach of contract may be pursued in the Employment Tribunal under the Employment Tribunals (Extension of Jurisdiction) (Scotland) Order 1994, provided that it is outstanding on termination of employment. In the present case the respondent accepts that it terminated the employment of the claimant summarily. There is a question as to whether as a Crown employee the claimant has the entitlement to notice under statute. It was raised in evidence and submission but had not been included in the Response Form, as originally drafted or as amended.

[145]There is a right to a minimum period of notice under section 86 of the 1996 Act. That right may not apply to Crown employees under section 191 however. It is addressed further below. If the claimant does have the right, the onus falls on the respondent to prove on the balance of probabilities that the claimant’s conduct was repudiatory so as to entitle it to do so. That was confirmed, if that be needed, in a recent EAT case Hovis Ltd v Louton EA-2020-00973. The general entitlement to a minimum period of notice is established in section 86 of the 1996 Act and is for one week of notice for each year of continuous employment up to a maximum of 12 weeks. If there is a breach of contract that gives rise to a right to damages subject to the principles of mitigation of loss under Scots law. (vi) Remedy

[146]In the event of a finding of unfair dismissal, the tribunal requires to consider firstly whether to make an order for re-instatement under section 113 of the Employment Rights Act 1996. The matter is further considered under section 116 as follows: “(1) In exercising its discretion under section 113 the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account—(a) whether the complainant wishes to be reinstated,

(b) whether it is practicable for the employer to comply with an order for reinstatement, and

(c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement. (2) If the tribunal decides not to make an order for re-instatement it shall then consider whether to make an order for re-engagement and if so on what terms. (3) In so doing the tribunal shall take into account – (a) any wish expressed by the complainant…… (b) whether it is practicable for the employer…. to comply with an order for re-engagement and (c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reengagement and (if so) on what terms…..”

[147]It is for the employer to provide evidence to show that it is no longer practicable to employ the claimant in her original role (Port of London Authority v Payne

[1994] ICR 555

.) In this context ‘practicable’ means “capable of being carried into effect with success”, not simply ‘possible’ (Coleman v Magnet Joinery Ltd

[1975] ICR 46

.) When considering practicability, either for reinstatement of re-engagement, issues as to whether trust and confidence have broken down; whether the employer genuinely, albeit unreasonably, believed in the Claimant’s guilt; whether the relationship has so soured to make it impracticable, will be directly relevant. It is the Tribunal which makes the assessment of practicability at first instance. This will include, for example, an assessment of whether the employer’s view that trust and confidence has broken down is real and rational. It is the employer’s view of trust and confidence which is material in this context United Lincolnshire Hospitals NHS Foundations Trust v Farren (

UKEAT/0198/16

), subject to scrutiny by the Tribunal.

[148]The tribunal requires also to consider a basic and compensatory award if no order of re-instatement or re-engagement is made, which may be made under sections 119 and 122 of the Employment Rights Act 1996, the latter reflecting the losses sustained by the claimant as a result of the dismissal. The amount of the compensatory award is determined under section 123 and is “such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer”. The Tribunal may increase the award in the event of any failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures. Awards are calculated initially on the basis of net earnings, but if the award exceeds £30,000 may require to be grossed up to account for the incidence of tax. The Tribunal may separately reduce the basic and compensatory awards under sections 122(2) and 123(6) of the Act respectively in the event of contributory conduct by the claimant.

[149]Guidance on the amount of compensation was given in Norton Tool Co Ltd v Tewson

[1972] IRLR 86

. In Nelson v BBC (No. 2)

[1979] IRLR 346

it was held that in order for there to be contribution the conduct required to be culpable or blameworthy and included “perverse, foolish or if I may use a colloquialism, bloody minded as well as some, but not all, sorts of unreasonable conduct.” Guidance on the assessment of contribution was also given by the Court of Appeal in Hollier v Plysu Ltd

[1983] IRLR 260

, which referred to taking a broad, common sense view of the situation, in deciding what part the claimant’s conduct played in the dismissal. At the EAT level the Tribunal proposed contribution levels of 100%, 75%, 50% and 25%. That was not however specifically endorsed by the Court of Appeal. Guidance on the process to follow was given in Steen v ASP Packaging Ltd

UKEAT/023/13

.) In respect of the assessment of the compensatory award it may be appropriate to make a deduction under the principle derived from the case of Polkey, if it is held that the dismissal was procedurally unfair but that a fair dismissal would have taken place had the procedure followed been fair. That was considered in Silifant v Powell

1983 IRLR 91

, and in Software 2000 Ltd v Andrews

2007 IRLR 568

, although the latter case was decided on the statutory dismissal procedures that were later repealed. A Tribunal should consider whether there is an overlap between the Polkey principle and the issue of contribution (Lenlyn UK Ltd v Kular

UKEAT/0108/16

). There are limits to the compensatory award under section 124, which are applied after any appropriate adjustments and grossing up of an award in relation to tax – Hardie Grant London Ltd v Aspden

UKEAT/0242/11

[150]Where there is a finding that there was a breach of section 103A the Tribunal may make an unlimited award of compensation, and make an award for injury to feelings.

[151]Where there is a finding of breach of contract an award can be made for loss during what ought to have been the period of notice, subject to proof of that loss and the duty to mitigate that loss. There may be a need to avoid double recovery with the unfair dismissal remedy if the same period of time is covered. Observations on the evidence

[152]The Tribunal’s assessment of each of the witnesses who gave oral evidence is as follows:

[153]Mr Hart was we concluded an honest witness. He was an independent investigator. He had wide and lengthy experience in conducting investigations. He conducted two investigations. The first was in relation to disciplinary allegations against Mr Anderson that followed from the claimant giving details of the chair incident both in the Tribunal hearing into the earlier claim, and in subsequent email correspondence with the respondent. The second was in relation to disciplinary allegations against the claimant that her description of the timing and circumstance of that incident were false.

[154]We had some issues with precisely how his investigation had been conducted, and considered whether he did so within the band of reasonable responses. It was not a simple matter. He might have started by seeking to ascertain from records of shifts, overtime, absence or annual leave who was on duty on each of the possible dates for the photograph. Mr Hart might have sought from Mr Anderson and Mr Paske a more detailed explanation of how the event unfolded, including how it started (it was unclear whether it was that the claimant was asleep or not, for example) and how taping someone’s mouth was part of so-called high jinks. He appeared to accept that it was that, but might well have explored more of the background alleged by the claimant of a dysfunctional, if not corrosive, office environment, and sought further detail of what was meant by high jinks. Mr Anderson might have been asked to comment on why the photograph had been taken, and then sent to others but not at that stage the claimant. He might have been asked to comment on the detail of the photograph and what might be drawn if anything from it. If any questions asked were not answered, or not answered fully or clearly, that could have been set out. The same issues generally could have been raised with Mr Paske, whose statement was even more sparse than that for Mr Anderson. We accepted that recollections generally may be less clear after the passage of about a decade, but an incident such as the one involving the taping of the claimant to a chair was not one that was likely to be easily forgotten, however long the passage of time.

[155]He could in particular have followed up on Mr Borwick’s recommendation to check the inboxes of recipients for emails said to have been sent, which was disputed, and there was no full explanation for that not being done. It was a step that was simple and straightforward to take by making a request of the IT department, and would have either led to the response that the emails were no longer available, or existed as the claimant alleged, or did not exist and therefore provided very strong if not conclusive evidence of their having been fabricated. Given that that was a serious allegation, and one simple to seek to verify, that was we considered a surprising omission. He also might have considered in more detail the dossier of evidence that he was provided with by the claimant. In that regard he said initially that he had “flicked through” it, but latterly that he had read it. He did not use it, rather he passed it on to HR and there is no evidence that anyone did anything with it thereafter. His investigation was limited to the issues he had been told he required to keep to, within his terms of reference, and that meant that it was not as wide an investigation as it could have been. The second report in particular did not actively seek evidence that might exculpate the claimant, such as by seeking to verify the position as to the emails. Its narrow remit, and the abrupt manner in which the second investigation was instructed to be brought to an end, led to a risk of the kind of manipulation of circumstance that the authority of Jhuti referred to.

[156]But he did gather a large body of evidence and presented that with commentary as to the strength of that evidence where he felt that appropriate. That was done for two separate reports. He was instructed to bring the second one to a quick resolution, and did so. He followed the instructions given to him by HR in that regard. He was the investigator, not the decision-maker.

[157]Mr Wallace was clearly a credible witness, who sought to address the matters before him professionally. He stated that it was his decision to proceed in the absence of the claimant, and considered that the reasoning set out by Ms Cairns in her letter to the claimant about that also explained his own reasoning for doing so. We did however have concerns as to that decision for a number of reasons. Firstly there was a concern that it was based on having read the written materials submitted with the disciplinary letter, which had a clear risk of prejudgment of the issues. Secondly both Ms Cairns and Mr Wallace proceeded in the face of occupational health advice. They were not medically qualified or experienced. Whilst the OH report confirmed that the claimant met the DWP tests for ability to conduct a disciplinary hearing the report from Dr Glen stated that there was a significant risk of harm to the claimant if she was required to attend it, and no account or certainly no proper account was we consider taken of that. Thirdly the claimant’s description of events was challenged as the basis for the OH and other reports, including those from her consultant psychiatrist, without referring those concerns to Dr Glen who was the subject specialist for an opinion. The decision taken in that circumstance, having read the documents submitted in support of the allegations and with no contradictor, had a real risk of unfairness. We address below an argument made in submission.

[158]Mr Borwick was an expert witness whose evidence we accepted as credible and reliable. His expertise was clear. He was independent of the respondent. He conducted a thorough review of matters, including seeking a better version of the photograph, and attending at the Campbelltown office to do so. That led him to securing a version of the photograph from the respondent’s server. He took that by way of zip file and we were satisfied that doing so was both appropriate and led to reliable evidence of the data in relation to that photograph in particular that it had been created on 10 August 2009. Mr Borwick did not reach a similarly conclusive view on the emails that had been sent to him, but he recommended, in effect, that they be recovered if that be possible. That they were not was not his responsibility.

[159]Mr Rennick was we considered both a credible and reliable witness. His evidence was impressive in a number of respects. Firstly he had given the clamant the first day of the appeal to present it in the manner that she wished to. He did not place any constraints on what may be raised by her or considered by him. He did so in an open manner, and without any hint of prejudgment. He allowed her a very long time to make her arguments as fully as she wished to. Secondly he read all the materials that he was given by the claimant, which was very extensive indeed, and did so to the extent that when asked about points of detail in many respects in cross examination he was able to answer from memory without checking the source materials before him at the time. That showed the care with which he undertook his role. Thirdly he checked with the claimant and her representative as to the grounds of appeal, and then sought to ensure that they were linked in some way to the evidence being presented to him so that he understood the points being made. Fourthly he investigated matters independently of the earlier processes, and asked the claimant to explain a number of points of detail in the version of events she gave, what had happened both at the time and thereafter, and to assess her answers against the evidence as a whole. In that process he was aware of the possible effect of trauma and that that may result in an issue not being reported at the time. He undertook that exercise both with care for detail and consideration for the circumstances of the claimant. Finally he set out his decision with a clear explanation of what he had held, and why that was, in a manner that we considered to be convincing both in the terms of that letter and in his evidence before us.

[160]The claimant gave her evidence clearly and calmly. She remained adamant that the chair incident had happened on 16 December 2010 and not earlier, that it had been against her will, and was a reaction to her having been identified as the person who reported the incident involving Alison Sutherland. She maintained that the emails challenged by the respondent had been genuine, and sent at the time. One was on 15 February 2011 referring specifically to an incident dated 16 December 2010 and therefore less than two months after she claimed it had taken place. It was clear from the history of matters that the respondent did accept that the culture of the office had been inappropriate, and on occasion it apologised for that and the way that the claimant had been treated. The Tribunal accepted her evidence on how she had been the victim of a number of unacceptable behaviours in the office, such as having paper pellets fired at her through the casing of a pen. The Tribunal also considered that part of her description of how the incident that was depicted in the photograph had taken place, but not all of it.

[161]There were a number of issues in her evidence that caused the Tribunal a degree of concern as to its reliability, which are addressed further below. The most obvious matters that make it more difficult to accept her evidence, apart from the issue of expert evidence, is the fact that the claimant did not make any formal report or complaint on or around 16 December 2010, she did not report it in clear terms to Mr Clark, she did not produce any email or similar record of it she may have taken at the time in accordance with the practice she spoke to after handing over her diary of events, she did not call as a corroborating witness her former partner Mr Munro who she claimed she had told of the incident on the day it occurred, she did not take up various opportunities to raise the circumstances of that incident in the years that followed until it was raised in the Tribunal, although she did raise other issues including matters as to what could be harassment or victimisation when raising the issue would normally be expected, particularly with those who were on the face of it accepting much of what she alleged, and there was a failure to plead the chair issue at all in the first Claim Form despite having legal advice at that time. Against that body of evidence is the claimant’s explanation that earlier substantial traumas in her life meant that she did not wish to address the issue at all at these points. That matter however is not consistent with what happened at the meeting in April 2012 when the photograph was produced by the claimant and referred to in support of her appeal, albeit somewhat fleetingly as we address further below. She raised it at that time in that context, rather than refrain from doing so at all. It is very surprising in all the circumstances that both the claimant did not make any clear comment about what is now alleged, or do so in the period afterwards to an extent close to that she now argues for.

[162]There are some inconsistencies in the description of events depicted in the photograph that we address below, but which include not giving Mr Hart a description of the event that included her kicking out, but doing so with Mr Daly of the BBC, stating that the photograph was taken by Mr Paske when we considered that that was not the case, and referring in her interview with Mr Hart to being at or near a desk, which was not what the photograph showed. Her explanation for the data in her own copy of the photograph giving a date of 10 August 2009 was not we considered credible, and the suggestion of a conspiracy involving many in HR and senior management was not we consider likely to be correct.

[163]In short there were some aspects of the claimant’s evidence that we accepted, but many other aspects that we did not.

[164]Mr Watts was a witness who was very well qualified to give evidence. He did so clearly, and candidly. We accepted his evidence that it was possible in around 2010 to use software to change metadata on a file of a photograph taken on a mobile phone. The validity of the data that Mr Borwick found was not, we concluded, as certain as Mr Borwick set out in his evidence. There were however two particular issues with Mr Watts’s evidence that are important, firstly he did not have evidence to state that the data had been manipulated, simply that it was a possibility, and secondly he could not state an opinion on when the photograph had been taken. We also require to consider matters in light of all of the evidence we heard, which is a great deal more than Mr Watts had before him.

[165]Mr Clark gave evidence in support of the claimant. He had been involved with her situation from 2009. He clearly believed that she was a whistleblower, and that her dismissal had been effected because she had done so. He was cross examined on his evidence that the claimant had disclosed the incident in December 2010 to him at the time. In his email to Mr Hart he had accepted that his recollection was not clear. It appeared to us that he did not recall when the claimant had provided him with the detail of the incident or the photograph with any real accuracy. It is also instructive that when he saw the photograph initially he did not appreciate its significance. That only arose, he said, at the appeal hearing in 2012. But not long after that hearing he did not raise the issue with the respondent despite having several obvious opportunities to do so. It appeared to us that that could only be consistent with the claimant not arguing, at that time, that this was an assault, instigated because of the report of the Alison Sutherland incident. If that had been what was alleged at that time, it appears to us most likely that a trade union representative would have raised the issue with HR or senior managers in very clear terms, and seek the suspension of the alleged perpetrator (Mr Anderson, as Mr Paske had by then left the employment of the respondent). We did however accept his evidence that it was not realistic to expect him to represent the claimant in her absence at the disciplinary hearing given the circumstances. That others in other situations do so regularly is not the point. He was acting entirely appropriately in not attending a meeting that, he considered, ought to have been postponed. Separately he was candid in accepting that the appeal was undertaken well by Mr Rennick, and that his criticisms were of earlier aspects of procedures, and that candour was to his considerable credit.

Discussion

[166]The decision of the Tribunal was reached unanimously. The present case is a complex one, with a substantial amount of competing evidence. It follows the earlier claim before the Tribunal involving the parties at which the claimant made allegations as to the chair incident on oath which attracted publicity, after which some time later there was dissemination of a photograph of the incident, which again attracted a great deal of publicity.

[167]The parties sought to present the Tribunal with a choice between:(i) the claimant as someone who had made a protected disclosure by email from her trade union representative on 17 September 2010 being assaulted on 16 December 2010 by being taped to a chair against her will by two male colleagues, including having tape placed over her mouth, in reprisal for having spoken out against two other male colleagues in that disclosure, and

(ii) the claimant as someone who had been a willing participant in an office prank which took place on 10 August 2009, raising that in evidence at the Employment Tribunal alleging that it occurred in a different manner and on the incorrect date, perjuring herself when doing so, repeating that dishonesty to Mr Hart and the media, fabricating emails to Mr Cunningham and Mr Macgregor in support of her lie, and providing information to others who used it online, all to the substantial distress and upset of Mr Anderson who was investigated by the police, subjected to internal investigation and then received the most dreadful threats online.

[168]Each party took therefore a diametrically opposite position. The claimant suggested that she was the subject of a conspiracy between senior managers and HR staff of the respondent for nearly a decade to dismiss her because she had made a protected disclosure. The respondent presented her as a liar and forger who had been caught out as such after giving evidence in the first claim, and then repeating it on several occasions thereafter.

[169]What matters in the claims that we heard is the evidence presented to us, and our consideration of that evidence against the law set out above. That evidence was not as complete as it could have been. Some of those who might have given evidence before us, as we address below, did not do so. Some written evidence that we might have been presented with was not put before us. Although we noted the terms of the earlier Judgment we formed our own separate view of the credibility and reliability of the claimant, and that of the other witnesses before us.

[170]We decided in relation to each of the issues as follows: What was the reason, or principal reason, for the claimant’s dismissal?

[171]We concluded that the sole reason for the dismissal of the claimant was a belief that there had been misconduct by the claimant in lying about the date and circumstance in which the photograph came to be taken, in particular that it was taken in December 2010 and was a reaction to a protected disclosure by the claimant in September 2010 when neither was true, and that she had fabricated the terms of emails between her and Mr Cunningham and Mr Macgregor. Mr Wallace gave evidence on that issue, and explained both that that was his belief and the basis for his coming to that belief. We accepted his explanations on that. He placed great store, understandably, on expert evidence placed before him that the claimant was certainly wrong on the date of the photograph, and therefore her claim that it was because of what she had claimed was her making of a protected disclosure in September 2010, which was after the date on which the photograph had been taken in August 2009, could not have been right. That was compelling evidence that such a belief was genuinely held by him. There was also however much other evidence to support the belief, including that of the witnesses Mr Hart interviewed, but also the failure of the claimant or Mr Clark her representative to make any allegation as to the incident at the time it happened, or in the years that followed up to November 2017 including in the Claim Form for the first claim save for a brief reference to it in April 2012. That there are issues with the procedure followed and the evidence considered in some respects does not detract from the fact of his belief at the time. The dismissal was also considered on appeal, and Mr Rennick gave clear and convincing evidence as to the reason for his decision being the claimant’s conduct, which we accepted. He did so after a long hearing over two days, and a very large volume of documentation before him. He considered all of it with an open mind and with great care, as we address further below. He did not believe what the claimant said, and concluded that the dismissal was justified for very similar reasons to Mr Wallace, but with the benefit of having heard directly from her. We were satisfied that the respondent had established that it had a belief in the conduct of the claimant and that was the sole reason for her dismissal. We address the separate issue of the alleged protected disclosures below. If potentially fair under section 98(2) of the Employment Rights Act 1996 (“the 1996 Act”) was it fair or unfair under section 98(4) of that Act?

[172]Conduct is a potentially fair reason for dismissal. We required to consider whether in all the circumstances of this case the dismissal was fair or unfair applying the wording of section 98(4) of the Act. There were many factors that bore on this issue. It is important to stress in this connection that we are not entitled to substitute our view for that of the employer. We cannot ask how we would have handled matters, and then, if that was different to how the respondent did so, conclude that the dismissal was unfair. We require to apply the band of reasonable responses to all steps of the process. We do so having regard to the fact that the respondent is the Scottish Ministers, effectively the Scottish government, in light therefore of the resources available to that respondent, and all the circumstances of the case.

[173]The process that led to dismissal had a lengthy history. The claimant alleged that she was the victim of a decade long campaign against her culminating in her dismissal. Assessing matters against the background of a very large volume of documentation and a wide range of disputes on so many factual matters, where far from all of those involved at the time of each gave evidence before us, indeed it was only the claimant who did so, is not simple. Our task is to find the facts relevant to the issues from the evidence we heard, and apply the law to those facts. We have sought to do so. (a) Proceeding in the claimant’s absence

[174]The first issue we address is the decision of the respondent to proceed with the disciplinary hearing in the claimant’s absence, and in the face of the advice from its own OH expert. This is an aspect of the procedures followed, which we also address further below. The respondent explained its reasons for doing so in the correspondence establishing the meeting, in the letter of decision by Mr Wallace and in his evidence. We required to assess those decisions against the band of reasonable responses. The present circumstances are unique. There is no direct guidance from authority. It appeared to the Tribunal however that where the assessment of a medical professional instructed by the respondent was based on matters reported to him, which the respondent considered factually incorrect, it was not open to the respondent to proceed as it did. No reasonable employer would have done so, in our view. The OH report did not say that the hearing could be held in two and a half months, as the respondent sought to argue. It stated in terms that she required treatment first, and it was clear that the period of two and a half months was an estimate of that. It stated in terms that there was a significant risk of harm to her if she was required to attend the disciplinary hearing until fit to do so. The report further expressed the view that she was a disabled person. No competent claim of discrimination on grounds of being a disabled person is before the Tribunal, but that opinion of the respondent’s own OH adviser is part of the background facts. The respondent, on advice from HR and then by decision of Mr Wallace, decided to proceed in the face of that OH opinion, in effect contradicting it. Mr Wallace did so because the basis on which the medical evidence had been given, as he understood it, was not accepted by him, although he had no medical qualifications or experience, and also from what appears to the Tribunal to have been a form of prejudgment of matters by the reference to the terms of the written documentation from Mr Hart’s report. In that decision to proceed in the claimant’s absence he was clearly heavily influenced by the views of HR. That is we consider shown by his letter of dismissal stating that the letter from Ms Cairns of 15 January 2020 advised the claimant that if she did not attend the hearing “it would proceed in [her] absence”, whereas that letter had said only that it “may” do so.

[175]The decision on what to do was not a simple one, but in all the circumstances in such a case as the present we consider that no reasonable employer would have proceeded to dismissal at that point. All reasonable employers would have sought additional OH advice on the arguments that the respondent put forward for not believing the claimant both generally and with regard to her medical condition, and including issues such as what had caused the PTSD which she had been diagnosed with, whether the claimant was genuine when describing symptoms, whether the claimant had received any treatment she needed, if not when that would start and how long that would take, and whether any other adjustments to the process could be considered. All reasonable employers would have adjourned the disciplinary hearing to do so on what was the first occasion. That detail could have been sought during what was in fact the four week period between the date of the hearing held in absence and the date of the decision. Once advice on such matters was received a decision on how to proceed could have been taken. That could have included consideration of whether to suspend without pay under the terms of the Discipline Policy, which permitted that.

[176]It was not however clear on the evidence before us whether or not the claimant was on full pay at all at the time of Mr Wallace’s decision. Her evidence had been that she had exhausted her entitlement to sick pay before then, although that was given after cross examination had been concluded an in answer to a question from the Tribunal. The respondent did not tender evidence themselves on what pay she had been in receipt of at or around that time. It is true that the suspension letter referred to her being on full pay but that was not put to her in cross examination. We were left unclear on that issue, and unable to make a positive finding in fact.

[177]It was also we considered surprising that there was neither a minute taken of the meeting, recording the absence of the claimant or her representative or a letter to her at that stage recording her failure to attend and that there was to be a decision taken in her absence but that that would take time given the volume of papers to consider. A reasonable employer could further have considered the terms of the Guide, which refers to an employee not attending the hearing on at least the first occasion given its terms. The ACAS Guide does not require to be taken into account, unlike the Code, but the Court of Appeal has held that its terms may be considered - McMillan v Airedale NHS Foundation Trust,

[2014] IRLR 803

. Not all reasonable employers would necessarily have done so, but the terms of the Guide are a factor that we take into account, and that is so in this case in particular as Ms Cairns referred to the Guide specifically in her letter. As she did not give evidence she could not be asked how she had done so given its terms and the circumstances.

[178]What was most surprising however was that a further reason for proceeding in the claimant’s absence was put forward, raised only in submission. That was that there was the potential for substantial delay, the pandemic had led to “lockdown” on the day before Mr Wallace’s letter was dated, and the claimant had been told that she was on full pay during suspension by the letter informing her of that. It was expressed that there was a concern of the claimant having an open-ended period on full pay all the while avoiding a disciplinary hearing, and that was why the decision to proceed was taken or at least a significant factor in that decision. That concern over an open-ended financial liability was however not the reason given in the letter of dismissal where it explained the reason for proceeding in absence. Nor was it the reason in evidence given by Mr Wallace. It had no evidential base at all. That there was that new argument, made solely in submission, tended to support the view that the reasons given for proceeding in absence were not within the band of reasonable responses.

[179]We concluded that no reasonable employers would have proceeded in absence at the stage of the first disciplinary hearing, but would have adjourned it, sought clarification from Dr Glen on a number of issues, and given the claimant one further opportunity to attend a meeting at a later date, either in person or remotely by some form of video platform, telephone, written submission or similar, after receiving such further OH advice. That view is supported by the experience of the two Tribunal lay members. We considered that that was of such materiality that it of itself could have led to the dismissal decision being held to be unfair, subject to analysis of the effect of the appeal, as referred to further below. (b) Reasonable investigation

[180]The second issue, which is at the heart of the issue of fairness, is whether there was a reasonable belief, based on a reasonable investigation, that the claimant had repeatedly lied about the chair incident. We address the investigation first. It was alleged that the claimant was firstly not truthful about the date, in that the photograph was said to have been taken on 16 December 2010. That date is significant as it is after the incident with Alison Sutherland said to be the source of a protected disclosure. The second aspect of the allegation is that the incident did not occur as she alleged, being a reaction to her making a protected disclosure (as she claims it to be) on 17 September 2010, being forcibly restrained by two male colleagues with tape placed around her body and across her mouth with remarks made about speaking out about the boys, but was with her consent as part of the pattern of (admittedly unacceptable as we address below) behaviours in the office. The third aspect is in relation to emails said to have been sent by the claimant about the December 2010 incident the respondent alleges were fabricated, the claimant claims were not. That was a stark difference between the two versions of events.

[181]The provisions of the ACAS Guide on investigating cases are set out above. We were concerned that a number of matters that might have been the subject of investigation were not. We addressed them above.

[182]We also considered that the decision to have Mr Hart investigate both what were in effect initially allegations by the claimant against Mr Anderson in particular, and then investigate almost the opposite allegations made latterly against the claimant, was not best practice. It was an investigation where the witness, the claimant, became the accused who was the subject of the investigation. Although Mr Hart was a factfinder the context was so different that we consider that someone new ought as a matter of best practice to have been identified, and that was so particularly given the size and resources of the respondent. That is exemplified by the following. Mr Hart had not gone into much detail with Mr Anderson and Mr Paske in their interviews in his first report, but he had done so to at least an extent in the two interviews with the claimant. He then raised questions with her in writing in the second report process. The questions were asked after the decision in relation to the disciplinary hearing against Mr Anderson. The outcome of that separate disciplinary hearing which did not involve the claimant, including a belief that the earlier date for the photograph was likely to be correct, was either irrelevant to the second investigation or if considered to be relevant the materials that led to that belief were then ones that were potentially of significance. Mr Hart did not however seek the minutes of Mr Anderson’s disciplinary hearing, when one would assume that at that hearing Mr Anderson gave an account of the incident. That account may have contained relevant material but was not sought by him, nor was it put before the Tribunal, and as we deal with more fully below the emails the claimant said she had sent her managers were not followed up by Mr Hart. There was something of a selective approach to the way in which evidence was gathered, and it was not dealt with in as balanced a manner as good practice would suggest, in our view.

[183]There is we consider a sense that on receipt of Mr Borwick’s report the view was taken that it was conclusive and that little further investigation was required. The report did state that the author was certain that the photograph had been taken on 10 August 2009. But the report also suggested further investigation of the emails which were in dispute. Had that been undertaken material evidence on whether or not those emails were genuine could have emerged, and that may possibly have led to a different perspective as to the certainty of the date of the photograph. It was far from being definitely the case that it would have so emerged, but it was possible. The email accounts of at least the claimant, Mr Cunningham and Mr Macgregor could have been examined by the IT department. It is possible that earlier emails had been retained, or otherwise stored in some form of back-up. That that was not instructed by any of Mr Hart, Mr Wallace or Mr Rennick is a cause for concern. But best practice is not the test that we must apply. We must assess overall whether what was done fell within the band of reasonable responses.

[184]This issue also requires to be seen in the context that there was a body of other evidence that was taken into account. That included the evidence from Mr Anderson given to Mr Hart that he had taken the photograph in 2009, that the event was therefore much earlier in time than the claimant had indicated, and in circumstances that must have been very different if in 2009 as it could not have followed the incident with Alison Sutherland. Whilst the genuine nature of the emails and the date of the incident depicted in the photograph are not inextricably linked, they are so closely linked that it was at least possible for a reasonable employer to have regarded them as if inextricably linked. The evidence further included that of Mrs Richards, whose comments to Mr Hart are not possible to reconcile with the evidence of the claimant. Mrs Richards did not give evidence before us, but Mr Hart stated that the claimant had accepted her as not being someone tainted by issues from the office, and he considered her to be a balanced and fair witness. Those views are not conclusive, but are apt to take into account. There is further Mr Borwick’s evidence as to the date of the photograph, supporting Mr Anderson’s evidence on that, which the employer accepted in circumstances where the contradictory technical evidence was limited to an email of what might be possible (Mr Watts had not been instructed at that stage) and concerns over the GPS data, which Mr Borwick had in both respects discounted as being factors that militated against the soundness of his conclusions.

[185]In addition there were some issues with the reliability of the claimant’s evidence. She alleged that Mr Paske had taken the photograph, when we considered it far more likely that Mr Anderson had done so, as he accepted, for the reasons set out below. There was an obvious inconsistency between her evidence and that of Mrs Richards which was given to Mr Hart, and Mrs Richards was generally thought to be someone relatively impartial. There is the WhatsApp message sent by the claimant to Mr Anderson about two weeks after the date she claims was the date of the incident in what are, on the face of it, friendly terms. Whilst that is not conclusive by any means the terms used are not easy to reconcile with what the claimant alleges Mr Anderson did to her not many days beforehand. There is a large chapter of evidence where the claimant had opportunities to raise the incident, particularly after she had the photograph in early February 2011, but did not directly do so. She had the photograph sent to her by Mr Paske in early February 2011, and therefore had it at the time she claims to have emailed Mr Cunningham. It is not we considered credible that she would email him in such terms without either attaching the photograph or referring to it, as it was evidence that could support the claims made she had very recently been given. There are other issues with the email she sent to him that we refer to below.

[186]The only occasion when the photograph was referred to was on 26 April 2012 in the context of an appeal against a disciplinary warning, but it was not raised in that meeting in terms as a substantial issue in itself but towards the end and rather fleetingly, and it was not followed up either then or afterwards by the claimant (who did not take up the invitation to provide evidence to HR) or Mr Clark (who emailed the Permanent Secretary at the time two months later and did not mention it). The long sequence of occasions when the incident and photograph was not mentioned is significant.

[187]We must also in this part of the analysis consider how Mr Rennick conducted the appeal, allowing the claimant a full opportunity to bring new details to him (albeit not Mr Watts’ report as that had still not been instructed), considering all the documentation she provided, and all that she said. He in effect conducted part of the investigation himself in doing so, and that part was significant. As is referred to in authority, the investigation by Mr Hart is not conducted in a vacuum, but is part of the whole process. Whilst he did not follow up on the issue of the emails that were alleged to have been fabricated we refer to that further below and consider that he was entitled to take the view that he did about it.

[188]Charges 5.6 – 5.9 had not been the subject of any investigation by Mr Hart, or otherwise under the respondent’s Disciplinary Procedure, and were added by HR, none of whose members gave evidence to us. We were not satisfied that the these allegations were appropriately and sufficiently investigated so as to fall within the band of reasonable responses. They were added, we concluded, as makeweights to the principal allegations. That does however leave those allegations.

[189]We considered that, in all the circumstances, there had been an investigation in respect of charges 5.1 – 5.5 that, just, fell within the band of reasonable responses, despite our reservations about the manner in which it had been carried out and the matters that might well have been further investigated. (c) Belief

[190]We then considered whether the belief founded on that investigation was one that a reasonable employer could have held. We were asked to consider whether a reasonable employer could have concluded that the date of the incident was not 16 December 2010 as the claimant alleged, but over a year earlier and over a year before the alleged protected disclosure that was said to have been the trigger for the incident, such that the other matters were also established as the claimant must have been lying about everything. We did not consider that the position was as stark as that. We did not consider that the determination of what happened as one that was appropriate to make in such binary form. We also required to consider the allegation that the claimant was dishonest, in the sense of telling an untruth known to be so. It is not necessarily the case that providing a wrong date leads to that conclusion of itself. As we address below we consider that the analysis require to be more nuanced. It was also required for each of the sub-charges individually.

[191]We concluded that the belief held by the respondent for charges 5.1 – 5.5 was within the band of reasonable responses. The reasons for the decisions by Mr Wallace and Mr Rennick were set out in their decision letters in some detail. We accepted that they were genuinely the reasons on which they reached their decisions. We accepted that that was the case in particular for the reasons given by Mr Rennick in his decision letter, after his two meetings with the claimant. We came to that conclusion for the following reasons:(i) The evidence of Mr Borwick was clear that the date of the photograph was 10 August 2009. He was in effect certain about that. He based his conclusion on examination of files on the Scottish government server at Campbelltown, which he visited. His report explains the process he followed. He is an independent and suitably qualified expert. That was very strong evidence indeed against the claimant. Before Mr Wallace there was no contradictory expert or technical evidence, and before Mr Rennick was only the email from Mr Stanbury which set out the possibility of the data being unreliable only. It did not establish that the photograph had been taken on the date the claimant alleged.

(ii) The claimant did not report the incident at or around the time, either to her managers, or HR, or otherwise in the respondent or to the police. Given what she claimed had happened that is very surprising.

(iii) There was not even produced an email or similar written evidence of the claimant either recording the incident herself or reporting the incident to Mr Clark on or around 16 December 2010, although she had been keeping a diary up to August 2010, and Mr Clark had been assisting her from 2009.

(iv) Mr Anderson and Mr Paske denied the allegation of an assault by them on her. They argued that it was a form of office prank which she had not been coerced into, and that it had occurred earlier than she had claimed. Whilst those in their position may not have admitted any guilt, there was a measure of consistency between their two statements, at least in part.

(v) Other members of staff reported her as having been involved in discussions about the incident and doing so in a form of lighthearted or jocular manner in the office. That was particularly the case with Ms Richards.

(vi) Other witnesses supported the suggestion that the incident was earlier than she claimed, such as Mr Fenwick who had left the office by September 2010 but said that he was aware of it.

(vii) Emails said to have been sent to Mr Cunningham and Mr Macgregor were not remembered by them when one would expect them to be recalled if they were genuine. Mr Macgregor was in the office later in the day when the email dated 12 April 2011 suggested that he was not and would not be so for two weeks. The evidence of his being there that day was compelling. As we address below it is not impossible that there is an explanation for it, but it is not a likely one. The conclusion we drew, the reasons for which we set out in more detail below, is that those emails were not valid, and had not been sent when it was alleged that they were. We concluded that the respondent was entitled on the evidence before it to reach the view that it did on those emails, even in the absence of the further investigations Mr Borwick recommended.

(viii) The claimant did not attend a meeting with Mr Hart for his second report, and appeared to avoid the meeting with him that had been arranged, seeking advance notice of the points to be addressed. That is surprising given all the circumstances and the earlier two meetings. It was not properly explained in our view.

(ix) Mr Anderson on the other hand was open with both Mr Hart and Mr Borwick, and gave access to devices, and information. He gave an account of the timing of the photograph consistent with the evidence Mr Borwick later found and reported on. His account, whilst not as detailed as it might have been, was consistent. He also accepted that he had taken the photograph. The claimant alleged that Mr Paske had done so. It was very surprising indeed for Mr Anderson to have made the admission he did if he had not taken the photograph. It is far more likely that his admission is accurate, and that that aspect of the claimant’s evidence is not correct.

(x) Mr Paske had left the respondent’s employment and did not cooperate with the investigation as well as one might have hoped, but also denied the allegation. Whilst it is the case that the description he gave was very limited indeed, he was answering the questions asked of him, which were not as full as they could have been. His position was in effect the same as Mr Anderson and contradicted the allegation of an assault.

(xi) The evidence of those two alleged perpetrators was supported by other evidence of a culture at the office described variously as high jinks and like a kindergarten. What might loosely be called pranks took place on a not infrequent basis. Whilst entirely wrong for such an office, those facts tend to support Mr Anderson and Mr Reid at least to an extent, in particular of their own perspective on what had happened and why and contradict the evidence from the claimant that the incident had been a reaction to her disclosing the September 2010 circumstances involving Ms Sutherland.

(xii) The claimant said that the incident was on 16 December 2010 at between 3 and 4pm. That date was a Thursday. The room in which the photograph was taken was occupied by Mrs Richards and Ms Sutherland. They not being there at 8pm on a Monday, being 10 August 2009, is we considered more likely.

(xiii) If there was a manipulation of the date of the incident, it is not easy to understand why such a person would also change the time of it from about 4pm to about 8pm. Doing so is contrary to common sense.

(xiv) The claimant did not mention the incident or photograph in her pleadings in the first claim in 2017, despite her having legal advice to prepare it, and despite the terms on which the claim was otherwise pled. That was particularly surprising given her position taken in the investigation by Mr Hart and then before Mr Rennick.

(xv) Mr Rennick explored the claimant’s position in great detail with her, and considered conscientiously all that she said to him, and all the written material she gave him. He did not consider her explanations to be credible, in particular her explanation as to why there would be manipulation of the data in the photograph. He considered that the data had not been manipulated. He accepted the report from Mr Borwick, which he considered was consistent with the other evidence, save for that given to him by the claimant which he rejected. He was entitled to form that opinion. It is an issue that we address further in the next paragraphs with regard to procedure. e) Procedure

[192]We then considered whether the dismissal was procedurally fair, which includes considering all the circumstances against the band of reasonable responses. We did not consider that there was any breach of the ACAS Code of Practice. What is material in this regard in particular is the appeal before Mr Rennick. That was in the context of our finding above in relation to proceeding with the disciplinary hearing in the claimant’s absence. The hearing before Mr Rennick was a very full appeal hearing, held over two days, before and after which Mr Rennick read all the materials placed before him, followed by detailed consideration of matters and a lengthy letter of decision setting out his analysis of the issues before him. He considered in detail all of the written and oral evidence the claimant gave to him. It was a full rehearing of the issue, and a full and open opportunity for the claimant to make her case. It was an entirely different process therefore to that before Mr Wallace.

[193]Mr Rennick in his very careful analysis placed considerable reliance on the report of Mr Borwick, as he was entitled to do. At that stage there was very little substantial evidence from another expert to consider, being only an email from Mr Stanbury, which was in general terms as to how data might be manipulated. Other evidence was also considered by Mr Rennick. There was, importantly, no credible explanation given by the claimant as to how a photograph taken in December 2010 could have data as to its creation in August 2009. The explanation put forward by the claimant was to the effect that those involved changed the data to cover the incident and photograph up, and did so between 16 December 2010 and April 2011 (at the stage of the appeal hearing the claimant argued that Mr Paske had done so when he left employment in April 2011, but in her evidence she accepted that he had left in early February 2011). That would however have required a level of technical expertise to fool someone as experienced as Mr Borwick, and against the background that one of those concerned (the claimant said it was Mr Paske, although he did not accept that in the investigation statement) provided her with what she said was a “doctored” photograph, with a change to its date. The note of the second day of the appeal hearing records that the claimant “could not explain why they would manipulate the picture other than to cover up evidence, and she was also unable to explain why [Mr Paske] had passed the picture to her”. In her evidence she alleged that he had done so as it was the right thing to do. Someone doing so in the circumstances the claimant alleged did not however accord with common sense, in our view, and Mr Rennick was entitled to consider that the events in practice did not match the version the claimant sought to give him. His conclusion was that he did not find the claimant’s evidence to him credible. We consider that at the very least he was entitled to form that view (we address our own conclusion below). We consider it likely that had he considered the claimant’s version of events to be generally credible he would then have instructed further investigation of email accounts and similar issues. He might also at that point have considered whether the photograph itself provided him with any evidence, rather than discount it as being something too speculative to seek to address. That he did not do so is explained by his conclusion that the claimant was not credible and reliable, and that he had sufficient evidence to decide the appeal. In this regard whilst we may have come to other views on charges 5.5 – 5.9, and we disagree on the issue of the adjournment of the disciplinary hearing which he endorsed, these are not points that make any difference to the outcome in this regard.

[194]It may be thought that allowing the appeal on charge 5.9 did not make any real difference, but we considered that it did show both the care with which Mr Rennick considered matters, and his consideration for the claimant’s circumstances.

[195]Mr Clark argued that although it had been a fair appeal the earlier procedural flaws meant that the claimant had not had a fair process. That is not however what the caselaw referred to above provides.

[196]Our conclusion is that the defects in the procedure identified at the earlier stage before Mr Wallace, in particular the proceeding with the hearing in her absence but also matters with regard to the investigation by Mr Hart into allegations 5.1 – 5.5 were all remedied by the very full and open appeal heard by Mr Rennick, and that considering the process as a whole it was not unfair. (e) Penalty

[197]The final aspect is whether the penalty of summary dismissal falls within the band of reasonable responses. We were of the view that in light of the beliefs the respondent held as to a level of dishonesty that was material, which included what the respondent believed was dishonesty about the date and circumstances of the incident when the claimant was tied to the char, being dishonest with Mr Hart and others, and the falsification of emails, with what were material consequences for Mr Anderson in particular, it was certainly within the band of reasonable responses to conclude that dismissal was appropriate. It was at the least a permissible option. These were matters that directly bore on trust and confidence in the claimant.

[198]It follows that we must dismiss the claim under section 94 of the Act, as it was not unfair under the terms of section 98(4). Did the claimant make protected disclosures to the respondent, and if so was that the sole or principal reason for her dismissal under section 103A of the 1996 Act?

[199]We did not consider that there was sufficient evidence of a qualifying disclosure having been made. The statutory test is clear, in that disclosure of information is required by “the worker” being the claimant. She alleged that an email sent by Mr Clark which commented on the attempted assault, as it was alleged to be, on Ms Sutherland amounted to a disclosure by her. But although the claimant said that it was made on her behalf it did not say so. The email only referred to the claimant as one of a number of persons who had witnessed the alleged incident. It was not possible to tell from its terms that the claimant was providing information at all. The Tribunal did not regard that email from Mr Clark as, for the claimant, meeting the statutory test. It was not a disclosure by her, but him. It would only have been hers if he had identified her as the source of the information similar to the disclosure of a principal under the law of agency. It was claimed by the claimant and to some extent by Mr Clark that he had later provided her name to Ms McCloy but Mr Clark could not recall when that was, or how, and that later message to Ms McCloy was not part of the alleged disclosure said to have been made by the claimant when seeking to amend her claim, and which the Tribunal permitted. She had relied only on the email itself. The respondent did not have notice of that additional argument and the Tribunal did not regard it as appropriate at such a late stage to permit a yet further amendment to add it, given the prejudice that would result and the need for enquiry to be made, which would be far from easy given both the lack of any specification as to date or method and the substantial passage of time. The Tribunal did not consider that the claimant had proved that she had made a protected disclosure on the basis of the email on which she founded.

[200]The claimant also relied on what she claimed was her email to Mr Cunningham dated 15 February 2011. That email was disputed by the respondent, which argued that it had been fabricated. There was again competing evidence on this. Mr Wallace expressed the opinion that if the photograph was not taken on 16 December 2010 as the claimant alleged, then the email referring to the incident on that date must have been false. The date of the email is under two months from that alleged incident. If in fact the photograph had been taken not two but 18 months before, then it is very likely indeed that the email is not one sent at that time. It is just possible that the claimant was confused over the date of the incident when emailing in February 2011, but that was at no stage her position. The terms of the email make no sense given that issue of timing, and is evidence that the email was not genuine.

[201]The Tribunal did take account of the fact that the respondent failed to act on Mr Borwick’s recommendation to search for the emails. There was some evidence that they might not have been retained, with a policy of deleting them after three years, but without looking that could not be clarified. The failure to follow that issue up was an error on the part of the respondent, but having regard to all of the evidence we did not consider that that changed our conclusion. We could not know what such a search would have revealed, it might have been that there were no emails left to seek, or that they did not exist, or that they did exist. The email to Mr Cunningham on 15 February 2011 came from the claimant’s private email address. She could have followed that issue up herself using the email address and device from which she sent it, but did not do that either directly with Mr Rennick or with her expert Mr Watts.

[202]There are four other factors that led us to conclude that it was likely that the challenged emails were not genuine. The first is that the header of the email is “Sick note”. That is a very odd header if what was being included in the first paragraph was a report of an assault for whistleblowing, as she claimed. It suggests that the first paragraph was added later, without the header being checked. The second is that the terms of the email regarding the alleged assault are not ones that might be expected if that information had, as the claimant alleged, already been given to Mr Cunningham. They had the air of a first disclosure, not a follow up. Thirdly and perhaps most importantly the email was sent shortly after Mr Paske sent her the photograph in early February 2011. It is astonishing that the email neither attaches it, nor refers to it. That is not, we concluded, likely to be credible. If the claimant did not have it on that date we consider that it would almost certainly have been referred to in a follow up email very shortly afterwards. That that was not done in the email or shortly afterwards led us to conclude, having regard to all the evidence, that the email was not genuine. Fourthly in the appeal hearing in April 2012 the claimant referred to the photograph, but in doing so made no mention of having raised the issue with her managers, including by emails in which she set out the circumstances she alleges, and that they did nothing in response. She had the photograph with her at that hearing to show it to those involved, which indicates a degree of preparation for the hearing. She also had the assistance of her trade union representative who was present. It is not we consider likely that the claimant would not at the same time have raised those emails if they had genuinely been sent earlier. We assessed the disputed terms of the email on the evidence before us, and that evidence led us to conclude on balance that the claimant, who has the onus of proof of having made a disclosure, had not sent it in the terms that she claimed. The conclusion is that the claimant did not make protected disclosures by the two documents on which she relies.

[203]In any event, even if they had been held to be protected disclosures, it was clear to us that the sole reason for dismissal was the belief by the respondent, specifically each of Mr Wallace and Mr Rennick, that the claimant had been guilty of gross misconduct in lying about the chair incident as to its date and circumstance. That is at the heart of their decision. Other issues arose, but it was what they considered was a lie that had serious consequences which was the principal reason for dismissal. There are issues as to other allegations, and issues as to process to which we have referred, but at the heart of it they each disbelieved the claimant on both when the photograph had been taken, and in what circumstances. Mr Wallace specifically denied both in his letter and evidence that any alleged disclosure affected that decision. It is of importance in this connection that the very long gap in time between the alleged disclosures and dismissal, of about nine years, suggests that the claimant’s position in this regard is unlikely. Whilst it is not impossible, that factor is a strong indicator against it. Secondly however the first investigation about the photograph was in effect against Mr Anderson, not the claimant. It was because that investigation and subsequent decision of the Deciding Officer in the hearing with Mr Anderson that the photograph was likely to have been taken in August 2009 that the second investigation was commenced directed to the claimant. The third aspect of the allegation is that there was a long conspiracy between senior managers and HR to dismiss the claimant, commencing from Mr Dryden’s emails in October 2011. But it is instructive that HR did not support the suggestion of a dismissal then at all, rather the response was to caution against doing so, and it was not done. There were later processes including the Fairness at Work hearing, and then appeal. The response from Mr Johnstone to the appeal was to apologise for what happened and to say that the claimant had done the right thing in bringing it to the respondent’s attention, to paraphrase his letter. These are not acts of a conspiracy against the claimant. The evidence as a whole persuaded us that this part of the claimant’s case was not well founded, although we did retain concerns over the role of HR in a number of respects as referred to in the following paragraph. Separately to Mr Wallace’s process, we were satisfied that the appeal by Mr Rennick considered issues entirely afresh, and that his decision was wholly unaffected by any protected disclosure if made. He addressed that both in his letter of decision and oral evidence before us. We did not consider that there was part of a conspiracy against the claimant as she alleged.

[204]In coming to those conclusions we did consider carefully whether there had been a form of manipulation of the evidence as suggested is possible in Jhuti. The facts of that case are very different to those of this. We were nevertheless concerned that some of those in HR of the respondent had firstly been involved in bringing a series of charges against the clamant which included taking a charge of serious misconduct and then re-stating it as a charge of gross misconduct, not explained as no HR witness gave evidence, and alleging dishonesty in claims for overtime although that was on the basis of Mr Cunningham’s timesheet; secondly imposed a narrow limitation on the extent of investigation; thirdly instructed Mr Hart to bring the second investigation to a prompt end, fourthly adding additional allegations themselves without there having been an investigation into them, and finally argued very strongly in favour of proceeding with the disciplinary hearing contrary to OH advice in the circumstances set out above. We were concerned at that body of evidence, and that none of the HR employees involved gave evidence before us. The extent of influence by HR was high in those regards. We were also concerned that a new reason for proceeding with the disciplinary hearing in absence was given in submission.

[205]We were however satisfied that there had not been the kind of manipulation or improper actions to secure an outcome that otherwise would not have taken place so as to fall within the principle established in Jhuti. Mr Wallace accepted that the decision to proceed in absence was his, and he stood by it. We accepted that it was his own conclusion on that, reached independently, albeit with advice from HR. We did not consider that that reasoning was affected by any alleged disclosure.

[206]He had considered the evidence over a lengthy period before making a decision on the basis of what was presented to him, and that is not suggestive of any earlier disclosure playing a part in his thought processes, as otherwise he could have made the decision very much more quickly.

[207]The hearing before Mr Rennick did not have the same issues as factors, as he had a meeting with the claimant and her representative, and gave them every opportunity to raise whatever issues they wished to. Mr Rennick’s evidence as we have stated we accepted, and we were satisfied from it that the decision he took was not affected by any improper manipulation or restriction of matters. He denied in clear and we considered entirely credible terms that the issue of the alleged protected disclosures had played any part in his decision. He took what we considered to be an entirely independent decision, not affected to any extent by anything other than the evidence before him, which included all that the claimant had wished to present to him. She did so to a very substantial extent. If there had been any sense of HR seeking to limit the evidence she was able to remedy that, and did so.

[208]We did consider the claimant’s evidence as to a form of mindset against her evidenced by emails from Mr Dryden in October 2011, charges against her being laid thereafter, including charges said to be gross misconduct, and that those charges continued up to the hearing before Mr Wallace, together with the arrangements made for the hearing which proceeded in absence and other aspects of our concerns over the role of HR. We did not consider it at all likely however that there was a form of intent to remove the claimant for almost ten years, which eventually came to fruition, as she sought to argue. We considered that Mr Clark was correct in his evidence that in October 2011 those involved in the emails were looking at options. The option of dismissal at that stage was not taken. There was also a possibility of the claimant being moved from the office to the Outer Hebrides, but that too did not materialise. Mrs Clemie gave evidence to Ms Johnson in her interview that the office was dysfunctional and that she was disappointed that the recommendations for it were not acted on. That is not someone acting as part of a conspiracy against the claimant. There was a very long gap in time between those issues, later disciplinary charges that were not taken to a hearing at that point, and the dismissal. The delay in progressing the earlier disciplinary charges does not support the suggestion of a conspiracy to dismiss the claimant, simply as so long was taken to do anything. The claimant was also promoted to Senior Fisheries Officer, which is not consistent with a desire to dismiss her.

[209]If HR were seeking to dismiss the claimant latterly (which appears to us to be likely in all the circumstances including instructing Mr Hart to end his second investigation, not accepting the OH advice, and seeking to proceed with the disciplinary hearing whether or not the claimant attended) that, we concluded, arose from a form of prejudgment of her guilt of the principal allegations within allegation 5, from a belief, at least from receipt of Mr Borwick’s report but perhaps earlier for example when Mr Anderson’s disciplinary hearing concluded, that the photograph had not been taken when the claimant alleged it to have been. Even although the HR witnesses were not led before us we did not consider that it should be inferred from that, and the other circumstances, that the alleged disclosure was what was truly the sole or principal reason for dismissal as we were satisfied that each of Mr Wallace and Mr Rennick’s evidence on this issue should be accepted. We considered that the sole reason for dismissal was the belief in the claimant’s misconduct each of them held.

[210]It follows that we dismiss the claim under section 103A of the Act. Was the termination of the contract of employment by the respondent a breach of contract?

[211]There is a preliminary issue to address under the 1996 Act and terms of the contract of employment. The contract has a provision excluding the claimant as a Crown employee from the right to a period of notice. Section 86 of the Act provides for a minimum period of notice as an entitlement for employees, and to contract out of that provision is unlawful under section 203. That is however subject to the terms of section 191 which provides for certain provisions of the Act to apply to Crown employees. Section 86 appears in Part IX, and for that part the sections that apply are only sections 92 and 93. The effect is that the right in section 86 does not, we conclude, apply to Crown employees in general terms. On that basis, the Tribunal concluded that the claimant may not in law have a right to notice under the statute. The respondent did not however make any reference to that issue in its pleadings. There was no issue taken as to whether or not the claimant did have such a right, either under the terms of the contract or by the terms of section 191 of the Act. The claimant had no fair notice of that argument. We concluded that in that circumstance it was appropriate that we address the claim for breach of contract on the merits of the same.

[212]This was the most complex of the assessments, as the test is on the balance of probabilities, with the onus of proof on the respondent. The respondent did not call all the witnesses it might have, for example Mr Anderson who remained its employee, and Mr Paske who did not but in respect of whom an application for witness order could have been made. It sought to refer to a statement from Mr Bruce, in which he alleged that the claimant had made false accusations against him, but did not call him to speak to it. It relied in a number of respects on what is hearsay evidence from Mr Hart in his witness statements, including those such as Mr Cunningham, Mr Macgregor, and Mrs Richards. Such hearsay evidence is nevertheless admissible in such a case, and it is our duty to consider all of the evidence before us. Where a person might have been called but is not, we considered that little weight could generally be given to the statements given by that person. The evidence could not be tested by cross examination, and the credibility and reliability of the person could not be assessed by the Tribunal having seen and heard from him or her. But the evidence requires to be assessed as a whole, and there is a degree of consistency in for example the details given by Mrs Richards to Mr Hart about discussions involving the claimant and others in the office when the photograph was looked at in a light hearted way, and other evidence including that from Mr Fenwick, and the claimant’s own failure to raise the issue at the time.

[213]The evidence includes expert evidence from two witnesses. The expert evidence was of particular importance to us in this aspect of the case. Both expert witnesses were very well qualified to give evidence, and were impressive when doing so. The differences between them were focused on how Mr Borwick had undertaken his role, and what each had before them. They also had differences of approach in general terms, which is not unusual between experts.

[214]We considered that although Mr Watts was likely to be correct that metadata in the file for the photograph could have been changed, that was a possibility that did not reach the level of probability on the whole evidence before us. We concluded that on the balance of probability the data had not been changed, and that it accurately recorded that the photograph had been taken on 10 August 2009 at 20.04 hours.

[215]We came to that conclusion for the following reasons(i) Mr Watts accepted that he saw no evidence that the data had been changed, such that he could not say positively that there had been manipulation of the data, still less that the photograph had been taken on 16 December 2010 as the claimant alleged.

(ii) He did not see the file examined by Mr Borwick taken from Mr Anderson’s H-Drive, although in Mr Borwick’s report he said that a copy could be made available. Mr Watts did not ask to examine it.

(iii) Mr Watts considered that a forensic image of the H-drive used by Mr Anderson should have been taken. Mr Borwick did not do so, but took what was effectively a copy of the file of the photograph file by way of a zip file. We did not consider that the method used by Mr Borwick was improper or unreliable, and we accepted his evidence that such methods as zip file copies are regularly used by law enforcement agencies worldwide, amongst others, and take a wholly accurate copy of the file. That Mr Watts would have carried out the task differently, and most likely in a more effective manner, is not, in this context, sufficient to doubt that what Mr Borwick did was within the conduct of a reasonably competent expert in the field.

(iv) Mr Watts did not, either directly or through the claimant, ask to have access to the H-drive.

(v) To make the changes to the EXIF and file data necessary there would require to be knowledge of the software to use, and both securing and then using two different programmes to do so. It is possible that someone in Mr Anderson’s position could have had that in late 2010 and the first two months of 2011, but there was nothing in the evidence to suggest that that was likely to have been the case. The claimant did not suggest in her evidence for example that he was a particularly astute user of computers or mobile telephones, or had a special interest in computer programming or similar.

(vi) The claimant had a copy of the photograph in early February 2011. The version she provided to Mr Watts is likely to have been that which she was given by Mr Paske at that time. It had metadata showing its date of creation as 10 August 2009.

(vii) For there to have been any change made to that metadata therefore required someone, between 16 December 2010 and early February 2011, to have existing knowledge of the necessary software, or to have carried out a search for that to find it, utilised the software programmes to do so, and then stored that changed version of the photograph at that time, before it was sent to the claimant.

(viii) Given the attitude to the event by Mr Anderson and Mr Paske, that is, the Tribunal concluded, extremely unlikely. It appeared to the Tribunal that they had acted under the belief that nothing seriously wrong had taken place. Mr Paske providing the claimant with the photograph is not consistent with his either personally or with knowledge of acts by someone else, most likely Mr Anderson, having made such changes to the data. It would be providing the victim with evidence of guilt of such manipulation, which is contrary to common sense.

(ix) Mr Anderson is we consider the person likely to have taken the photograph. He said to Mr Hart when questioned that “If I had anything to hide I would have ditched the photograph”. That appeared to the Tribunal to be a credible comment, which made sense given all the circumstances. Mr Anderson was, from the statement he gave, open with Mr Hart, provided access to all devices, made reference to the date of the photograph when doing so, and gave access to his work computer willingly.

(x) The claimant did provide the photograph in her appeal against a misconduct written warning, in April 2012. Having done so in that context it is not easy for her to argue that she had “buried” the incident psychologically, as she suggested she had because of the traumatic incidents earlier in her life.

(xi) She had shown it to a senior manager in doing so. It is not we consider credible that, if the incident happened as she alleged before us, she did not say that to the senior manager at that time, and that becomes more surprising still when that manager allowed her appeal. It is also significant that at the appeal hearing she did not mention at all the emails she alleges she sent to managers in February and April 2011 and their lack of action in relation to the matter. That was an occasion when there was an opportunity to raise these issues, with someone who might have been supportive of her, which was not taken.

(xii) Mr Clark said that he did not appreciate the significance of the photograph until that appeal meeting. He had it in his possession but it appeared that he had not understood what the claimant said it showed, or otherwise understood what it depicted. In fact even after that hearing he did not follow it up formally with the respondent shortly afterwards at all. It is therefore not at all surprising that HR also did not appear to appreciate that it was significant at that hearing. Very little was said about it at the time, and it was not clearly stated that there had been a form of assault on the claimant by two male colleagues who had taped her to a chair against her will, placed tape across her mouth, and had done so because of her role in reporting the September 2010 incident. The claimant did not act on the invitation to raise any such matter with HR in the decision letter thereafter issued.

(xiii) The claimant alleged that the incident occurred between 3pm and 4pm on 16 December 2010, which was a Thursday, when the Tribunal considered that it was more likely that at least one of the assistants in whose room the incident occurred would be present. It did not accept as likely her evidence that both had been allowed to leave by then as it was near Christmas, as that was over a week away. The Tribunal considered that those assistants not being in the office at around 8pm, the time suggested by the metadata of the photograph, was more likely.

(xiv) It did not appear to us likely that someone manipulating the date of the metadata would also manipulate the time from 3 – 4pm to around 8pm, as doing so made little if any sense. That tended to suggest that the time and date had not been manipulated.

(xv) Mr Anderson also gave the claimant access to his house around 31 December 2010. That is not likely to be consistent with him personally or through another manipulating the data on the photograph. (xvi) Mr Borwick considered from what he knew that the photograph had been “moved” from the iphone to the work computer. That means that the same file is transferred from the phone, on which it is no longer stored, to the computer where it is stored. If that was done, which we consider likely, that file on the computer is the best evidence of the photograph at that time. Mr Watts did not dispute that, if the file had been moved rather than copied. It also appears to us that to all intents and purposes, if not precisely, the file version of the photograph on the H-drive is the same as the original file created on the phone when the photograph was taken using it. (xvii) Mr Watts set out in his report the documents he had been sent, but did not include some which he had been sent being the statements to Mr Hart of Mr Anderson and Mr Paske. (xviii) Whilst the GPS data was inaccurate as to location, Mr Watts confirmed that in around 2009/2010 an iphone when used to take a photograph inside would be likely to use as location the mast from which it derived a signal. In all the circumstances we did not consider that the difference in the GPS data on the photograph data to the location of the office rendered the likely date of the photograph’s creation unreliable, and we accepted Mr Borwick’s evidence in that regard. (xix) Mr Borwick had access to the H-drive of Mr Anderson. Whilst the photograph stored was a copy of an electronic file, he did not see any evidence of manipulation of it. Anything held electronically might be capable of manipulation, but the prospect of that being done to a file held on a government server in the circumstances of the present case was we concluded extremely remote. It would require a level of conspiracy and of forethought we did not regard as credible (xvi) The claimant’s version of events has not been entirely consistent. Different details emerged at different times, for example a reference to kicking was only given to Mr Daly of the BBC, and not to Mr Hart. She alleged that Mr Paske had taken the photograph. Her comments had included that she was sitting at a desk, but no desk is shown in the photograph. There is no written record of any kind made by the claimant of the incident, either on 10 August 2009 or 16 December 2010, or shortly after either date. Her evidence as to the emails we have addressed above, and did not consider credible. (xvii) There were areas of evidence from the claimant which did not accord with other evidence. For example she did not agree that the scope of issues in Ms Johnson’s investigation was agreed with her and Mr Clark, saying it was the union which did so. That is not what the record indicated, and Mr Clark would not act entirely independently in such a matter in our view. (xviii) The claimant alleged that Mr Anderson had been put up to carrying out the incident by Mr Yuille. Mr Yuille had however been suspended in early September 2010 and was not in the office. The suggestion she made was not supported by any evidence at all, and was not we considered at all likely to be correct. Neither Mr Anderson nor Mr Paske made such a suggestion in their evidence to Mr Hart. The claimant’s allegation was not we considered one that was at all reliable, and that detracted from the reliability of her evidence more generally. (xx) Although it is not impossible that the emails the claimant sought to rely on are genuine, the claimant did not produce her own copies of them although some had been sent from her private email account, she did not through Mr Watts seek them from the respondent, and it is not clear whether they were able to be obtained in any event. (xxi) It is possible that the email to Mr McGregor was sent at around 9am when he was in or around Aberdeen having arrived from the overnight ferry, not intending to go to the Scrabster office, and later deciding to do that because of the claimant’s messages to him, but that is a possibility rather than a probability in all the circumstances. It is more likely that if he had decided to change his plans and travel to the Scrabster office he would have emailed the claimant to tell her, and there was no evidence of that. (xxii) The claimant’s version of events is that there was a conspiracy to remove her lasting for almost 10 years, and not only is that most unlikely in the circumstances where the allegations relating to Ms Sutherland led, after appeal, to neither Mr Fenwick nor Mr Yuille being dismissed or moved respectively, such that the issue was primarily a local one for the office rather than one directly affecting a large number of people in the main offices in Edinburgh, but also that was not a part of her grounds of appeal with Mr Rennick (xxiii) Overall we did not consider the claimant’s evidence to be credible and reliable in material respects.

[216]The claimant remains adamant as to the date and circumstance of the incident. It is not impossible that she is correct. It is possible that the data on the files of the photographs was manipulated as she claims, and that the emails she sent are genuine. For her version of events to be accepted however there would require to be an almost immediate acknowledgement by those involved that the photograph contained incriminating evidence of what was a form of assault, an attempt to manipulate the data which succeeded in fooling Mr Borwick, and also a very broad conspiracy of many people to dismiss the claimant for her making protected disclosures nearly a decade later. A large number of those interviewed by Mr Hart would have required to have been dishonest. Some of them had little if any obvious incentive to do so, for example, Mrs Richards who said that she had seen the photograph at work being discussed, with the claimant involved, in terms that can be described as light-hearted. Why there would be such a conspiracy in the circumstances alleged was not clear, as there was an investigation, and actions taken against Mr Fenwick and Mr Yuille, albeit later amended on appeal, and if there was one, the respondent could have taken opportunities far earlier to dismiss the claimant (as Mr Dryden appears to have considered for example).

[217]We scrutinised the photograph as closely as we could. It is not determinative. One cannot easily tell from it, or at least the Tribunal was not able to tell from it, whether it was taken in circumstances of duress, fully or partly, or with full participation by the claimant. The tape on the mouth is nevertheless particularly concerning. The photograph does not look like high jinks as that term is normally understood. High jinks is not normally a term one would expect to be used for events at a government office charged with enforcing the law. It is a term that has dangers. It can cover on the one hand conduct in which every participant plays an equal part and enjoys, and on the other hand conduct which is perceived by the recipient to be discriminatory, and is in fact harassment. It is a term not unlike “banter”, which is a word that can describe an innocent joke, but also be a cover for the use of racist language, for example. This photograph shows an event that the Tribunal does not consider to be acceptable high jinks, if high jinks are ever acceptable in a government workplace. The photograph itself shows an image that has elements that are sinister, in particular that tape is placed across the claimant’s mouth.

[218]Mr Rennick did not consider the photograph directly as evidence as he did not wish to speculate. He was concerned in effect that doing so was unreliable. We can see why he held that view, and it was one within the band of reasonable responses, but that is not the test in a breach of contract claim and for our part we did not agree with it. The photograph itself is evidence, and a degree of consideration of what it shows is we consider merited. Dr Gibson argued that it showed the claimant smirking. No witness said that, and his suggestion in cross-examination is not evidence, particularly when the claimant rejected it. We do not consider that the photograph shows the claimant smirking as he put it. The expression on the face is not easy to see, but it does not appear to us to show someone enjoying what is depicted. That is not surprising with tape over the claimant’s mouth. That is not a situation one would ordinarily equate with having fun. The tape used is parcel tape, which is strong, and it is also wound tightly around the claimant’s knees and torso. Her arms are at her side, taped into place.

[219]We have concluded that it is likely from the evidence before us that Mr Anderson and Mr Paske were acting beyond the bounds of what was proper conduct at that time, as the respondent had accepted in some of its correspondence to the claimant, but that in their own minds what they were doing was part of the general office culture of puerile pranks. It was at the furthest extreme of such misbehaviour, and was quite unlike any other act given as examples. Our conclusion is that at the time of the incident they were likely to have believed that it was a form of practical joke that they were playing. It had nothing to do with any disclosure made, because of its timing. There may well have been nothing that triggered it other than the dysfunctional office culture. That may explain why the photograph was taken and then shared with others as part of an office joke, albeit not sent to the claimant at that time, rather than that it was destroyed lest it be evidence of their having undertaken an assault with criminal consequences potentially for them. For the reasons given above we did not consider that it had had data manipulated. It would have been a highly risky strategy firstly to manipulate the data, and then provide the photograph with that manipulation. The less risky and more obvious course of action would have been to destroy it.

[220]But the incident involved two males taking steps to bind a female to a chair, and the winding of the tape around her six times, and placing it over the mouth, indicates use of a degree of force, even if they thought that that was in a form of jest. Their perspective about the incident was not the same as that of the claimant, we concluded. We consider it likely that at the time she was privately upset by it, but that she did not actively and openly protest about it at the time either with her line mangers or HR as a means of fitting in to the office, and dealing with the general practice of misbehaviour which had taken place directed towards her and others. The level of upset we consider likely was in the context of a series of other acts targeted at her which were also inappropriate, including firing pieces of paper at her through a pen, and the use of derogatory terms in the office, and others. She did not, we infer, consider it sufficiently important at the time either to record it in writing or to raise it clearly with Mr Clark. She also did not raise the incident formally when she received the photograph in early February 2011 as she did not consider it such a serious matter at that time. She did do so over a year later, in April 2012 in an appeal hearing, but somewhat fleetingly and not saying in terms that she had been the victim of an assault. Nor in that hearing did she mention emails to her managers of any alleged lack of action by them at the time. Mr Clark did not follow it up after that hearing. These facts indicated to the Tribunal that at that stage the claimant did not treat it as a serious matter, but just as another in a series of pranks that had gone too far. She raised it as a real issue only when being cross-examined in the earlier claim, but that was several years later, in November 2017, when she gave evidence that was a mixture of what had happened to her, with what had not. She dishonestly added a substantial layer of fictional detail to her recollection of the event, that being some of its detail, its date, and by adding reference to her alleged protected disclosures.

[221]These comments are our inferences from all the evidence led before us. We did not hear evidence from a psychiatrist or psychologist for the claimant. We had her own evidence that she had not raised the issues at the time because of the earlier traumatic events in her life and how they had occurred, such that she had “buried” it, but that was not, as stated above, consistent with her raising the photograph in April 2012. We were also not provided with her medical records and with any entries either from December 2010 or August 2009 which referred to the incident having been reported to the GP as having caused distress. Mr Munro to whom she said she reported it on the day she claims it happened, which was 16 December 2010, did not give evidence before us. That was most surprising if he could give evidence to corroborate her own evidence as to the date, as she claimed in her evidence. He could have been the subject of an application for a witness order if he did not agree to attend voluntarily. What was also surprising was that there was no written evidence at all about the incident depicted in the photograph. It was not mentioned in the diary, nor was any email produced sent by the claimant from her work email to her home email address recording what had happened and dated on or shortly after 16 December 2010, although she said that she did send such emails as a record of matters after handing her diary to HR in August 2010.

[222]The image shown in the photograph and the possibility that its data were manipulated, together with the evidence of the claimant herself, is not we concluded sufficient evidence to outweigh all of the other evidence that is against the claimant. She maintained her position as to its date, and that position is we concluded wrong. It follows from that that the suggestion that it was a form of retaliation for her “blowing the whistle”, as she put it, on the incident involving Ms Sutherland, cannot be right. Those two facts were the basis of the first allegation against her in charge 5. They were well founded. She wrongly set out that position before Mr Hart. The likelihood is that an email alleged to have been sent to Mr Cunningham on 15 February 2011 by her was false in the reference to the date and incident, and were added later, as were similar parts of emails from him, and emails to and from Mr Macgregor. We concluded from all the evidence before us that she had been dishonest and not simply mistaken, not only as that issue of mistake was not ever her position, but also as it was we considered not realistically possible to reconcile the date of the photograph, the comments she made regarding the incident with Ms Sutherland in September 2010, with the emails she claimed to have sent to Mr Cunningham on 15 February 2011. We concluded that those emails and the date of the incident were so closely related that if the date of the photograph was not as the claimant alleged, her dishonesty in relation to the claims she made in those emails did follow from that.

[223]We were satisfied that there was a level of dishonesty in relation to allegations 5.1 - 5.5 which was sufficiently high as to amount to repudiation of the contract by the claimant. Taking all of the evidence before us into consideration we concluded that the respondent had proved that it was entitled to terminate the contract without notice as a result. We accordingly must dismiss the claim for breach of contract. If any claim is successful, to what remedy is the claimant entitled?

[224]This issue does not now arise.

Conclusion

[225]In light of the findings made above, the Tribunal dismisses the Claim. In so doing we wish to make some additional remarks. The photograph of the claimant is in the view of all of the members of the Tribunal not acceptable in the modern workplace, nor was it in 2009, even if it was taken by those involved believing it to be a form of prank. Some of the details of the incident were not clear, such as how it started, precisely who did what, whether the claimant kicked out and if so whether either of those involved responded to that, and others. It is now over 10 years since it was taken, but then and now it is far beyond the pale of what we consider could ever be acceptable behaviour in the workplace, as did taking a photograph of it and sending it to others (not at that stage the claimant) which was we believe not an acceptable act in itself. Nothing in our Judgment should be taken as condoning the behaviours of those involved to any extent.

[226]We have commented that we did not hear from some witnesses who might have appeared before us. The photograph has not been suggested to have been a fabrication in respect of what it depicts. We acknowledge that Mr Anderson and Mr Paske have not given evidence and to that extent all that might have been said has not been, but we conclude that we can make the comments that we have from our consideration of the photograph itself, and the evidence of it being sent to others by Mr Anderson and only later, by Mr Paske, to the claimant, and the other evidence we heard.

[227]We would also wish to state that the online abuse suffered by Mr Anderson which was put before us was itself so dreadful as in our view in at least one case was likely to amount to a crime under Scots law, and could have been worthy of investigation by the police. However inappropriate his actions and those of Mr Paske may in our view have been, the reaction of some of those online was wholly unacceptable.

[228]The claimant had the perception that she had been the victim of a bullying culture for a very long period. Whilst we have made the findings that we have, not all that she said in evidence was, we considered, unreliable or untrue. Some of the behaviours at the office were entirely wrong. It was not a kindergarten, which is the term one person spoken to by Mr Hart used, but a government office charged with enforcing the law. It was at least for a material period dysfunctional given the evidence of how those working there conducted themselves and not all steps that were recommended to be taken to remedy that were.

[229]As to whether those matters have been addressed by the respondent as well as they could have been we have material doubts. Best practice was not followed in certain respects. There was evidence of some of those in HR suggesting steps to remedy the dysfunctional aspects of the office which were not introduced, with the obvious risk that dysfunction continues, of HR limiting the extent of the investigation and later instructing Mr Hart to bring the second investigation to an end quickly, of advising Mr Wallace to bring the disciplinary hearing to a head contrary to at least one view of the evidence of the respondent’s occupational health physician, and of expressing views that we considered amounted to prejudgment. No one from HR gave evidence. Mr Hart conducted the investigations, but thought that he was to an extent constrained by what he described as his terms of reference. We were not clear why “terms of reference” were thought appropriate for what was or became a disciplinary investigation. It would be expected that the investigation be in relation to allegations that were set out, and include whatever reasonably comes from them either to establish guilt or innocence of them. There was we concluded some prejudgment by HR of the allegations. By the respondent taking the form of binary approach to the claimant’s position that we have referred to, all of the issues raised by the claimant have been rejected out of hand when at least some of them were issues that merited proper examination, and we include the precise circumstances that are depicted in the photograph in that. Those precise circumstances are not clear.

[230]It was not however any part of our function to conduct a broad enquiry into such matters ourselves. We do not know what witnesses who were not called before us might have said. We do not know what documents not provided to us stated. We must address the issues identified above in light of the evidence led before us, not make up new issues ourselves.

[231]Whilst the respondent has succeeded on those issues, it may nevertheless wish to reflect carefully on how it handled all the matters addressed in this Judgment.

[1]A Judgment in this case was issued on 13 January 2022.

[2]The claimant seeks reconsideration of that Judgment, by email dated 27 January 2022, which attached a detailed argument extending to 21 pages, and also seeking to found on new evidence which was provided separately and received by the Tribunal on 11 February 2022 together with a further letter in support. The Final Hearing took place before a full E.T. Z4 (WR) Tribunal constituted as above. The decision set out in this Judgment was made by me alone, for the avoidance of doubt.

The law

[3]The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 set out the Rules of Procedure in Schedule 1, and those in relation to the reconsideration of judgments are at Rules 70 – 73. The provisions I consider relevant for the present application are as follows: “70 Principles A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision ('the original decision') may be confirmed, varied or revoked. If it is revoked it may be taken again. 71 Application Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary. 72 Process(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge's provisional views on the application.

(2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations.

(3) Where practicable, the consideration under paragraph (1) shall be by the Employment Judge who made the original decision or, as the case may be, chaired the full tribunal which made it; and any reconsideration under paragraph (2) shall be made by the Judge or, as the case may be, the full tribunal which made the original decision. Where that is not practicable, the President, Vice President or a Regional Employment Judge shall appoint another Employment Judge to deal with the application or, in the case of a decision of a full tribunal, shall either direct that the reconsideration be by such members of the original Tribunal as remain available or reconstitute the Tribunal in whole or in part.”

[4]In Shaw v Intellectual Property Office

UKEAT/0186/20

the EAT described the first stage in Rule 72 as a 'sift' stage of the reconsideration application, akin to the sift process which is applied to appeals to the EAT. The test is in Rule 72 itself and is whether the Judge considers that there is no reasonable prospect of the original decision being varied or revoked. If so the application may be refused. The power in the rule is to be exercised having regard to the overriding objective in Rule 2. It states as follows: “2 Overriding objective The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;

(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;

(d) avoiding delay, so far as compatible with proper consideration of the issues; and

[5]In Serco Ltd v Wells

[2016] ICR 768

, the EAT observed that the Rules of Procedure must be taken to have been drafted in accordance with the principles of finality, certainty and the integrity of judicial orders and decisions. The EAT also held that the issue of whether or not an order should be varied or set aside was a matter of jurisdiction and not an exercise of discretion by the Tribunal.

[6]Some of the case law on the predecessor provisions was based on the test in Ladd v Marshall

[1954] 3 All ER 745

, for determining the admissibility of fresh evidence in the Court of Appeal (therefore a matter of English law and practice), for example Wileman v Minilec Engineering Ltd

[1988] IRLR 144

. Following the implementation of the 2013 Rules, the EAT held that the Ladd v Marshall test (in conjunction with the overriding objective) continues to apply where it is sought to persuade a tribunal, in the interests of justice, to reconsider its judgment on the basis of new evidence (Outasight VB Ltd v Brown

UKEAT/0253/14

[7]The Ladd v Marshall test has three parts. It must be shown:(a) that the evidence could not have been obtained with reasonable diligence for use at the original hearing;

(b) that it is relevant and would probably have had an important influence on the hearing; and

[8]The principle in Scotland is res noviter veniens ad notitiam, usually referred to as the res noviter rule. There is one authority on the former provisions as to review being in Stevenson v Golden Wonder Ltd

[1977] IRLR 474

in which the EAT stated that those provisions were not intended to provide parties with the opportunity for “further evidence [to be] adduced which was available before”.

[9]There is little practical difference between the approaches in each jurisdiction, in my opinion, but they are not identical.

[10]MacPhail on Sheriff Court Practice states the following: “The court may also receive a minute of res noviter and allow additional evidence to be heard in very exceptional circumstances: see Coul v Ayr CC, 1909 S.C. 422; Mitchell v Sellar, 1915 S.C. 360 at 361”

[11]In the latter of those two cases the Lord President said this: “This is one of a class of cases in which the Court has certainly a very wide discretion—at the same time, a discretion which is only exercised under very exceptional circumstances.”

[12]The res noviter principle was referred to more recently in Ramsden v Santon Highlands Ltd

[2015] CSOH 65

, a decision of Lord Kinclaven, as follows: “Res noviter must refer to some fact which was not known and which could not, with reasonable care and diligence, have been known before. The pursuer requires to aver circumstances showing that he was excusably ignorant of how matters stood. He must give particulars of its discovery and of the circumstances which bear upon the possibility of his having acquired earlier knowledge of it.”

[13]The EAT in Outasight acknowledged that there might be cases where the interests of justice would permit fresh evidence to be adduced, notwithstanding that the principles in Ladd were not strictly met. What is not permitted under the 2013 Rules, the EAT held, is the adoption of an altogether broader approach whereby fresh evidence may be admitted regardless of the constraints to be found in the established test.

[14]The facts of Outasight are that the Tribunal, having dismissed the claimant's claims for wrongful dismissal and breach of contract, revoked its decision on a reconsideration after it allowed the claimant to introduce new evidence of the fact that the respondent’s director and sole witness had previous convictions for dishonesty. In permitting the new evidence to be given, the Tribunal acknowledged:(a) that the claimant had had some awareness, but no actual proof, of the director's criminal past at the date of the liability hearing;

(b) that he could at that stage have carried out the same due diligence test (searching the Internet) that he carried out after judgment had been given; and

(c) that, consequently, the strict test for the admissibility of new evidence had not been met. Notwithstanding this, it considered that the 2013 Rules gave it a wider discretion to admit the evidence and hence to reconsider its original decision in the light of it. As that decision had been finely balanced and the credibility of the claimant had been central to it, the Tribunal revoked its decision mainly on the ground that the decision might have been different if it had had the evidence of the convictions at the time of the hearing.

[15]On appeal the EAT set aside the revocation and restored the tribunal's original decision. It held that not only had the Tribunal been wrong to admit the new evidence when the test for admissibility had not been met, but also that the claimant had sufficient knowledge of the director's criminal past to initiate an inquiry, seeking if necessary an adjournment to pursue it, if he considered that the convictions were relevant to the issue of the director's credibility. Even though the claimant was unrepresented at the hearing, there were no grounds for the Tribunal bypassing the Ladd v Marshall test and interfering with the original decision.

Discussion

[16]I shall deal first of all with the presentation of what is said to be new evidence. It was accompanied by a letter in support extending to three pages. Twelve documents are then produced. There is nothing said as to why that evidence could not, with reasonable diligence and care, have been before the Tribunal at the Final Hearing. It was referred to shortly after the Judgment was issued, and then produced shortly after that. It appears to me that if the documents and related arguments were relevant for the Final Hearing they could have been produced with reasonable diligence and care, and that that is the position although the claimant is a party litigant. She produced a large amount of documentation, and gave evidence for a lengthy period.

[17]Having read the letter sending the documents comprising the new evidence, and the attachments, it does not appear to me in any event that they are relevant to the Claim itself to any material extent. At the very best they are matters of background or which are tangential to the facts material to the issues in the case. I do not consider that it is in accordance with the terms of the overriding objective to allow such new evidence to be received.

[18]I turn to address the arguments for reconsideration, which are lengthy. I consider that to a significant extent the application either rehearses arguments that were made before the Tribunal and did not succeed, or makes the same general arguments in a different manner, or makes similar arguments partly on allegations of fact not the subject of evidence to the Tribunal which could have been before the Tribunal at the Final Hearing. The claimant argues that there should be reconsideration of procedural flaws as she refers to, including the role of Human Resources, but there is nothing in those arguments that would, in my opinion, affect the outcome having regard to the terms of the Judgment and the reasons given for it. The claimant seeks to argue on a number of occasions that the Tribunal got the detail and outcome wrong, as she sees it. She makes arguments briefly in relation to the appeal before Mr Rennick. Her arguments were however rejected at the Final Hearing and the application adds nothing material to those arguments, in my judgment, nor does any point of detail make any difference to the analysis of the outcome. She maintains her position that the event in relation to her being taped to a chair occurred on 16 December 2010, but what is stated in relation to that does not address the weight of evidence to the contrary as set out in the Judgment, or the fact that for the claim of unfair dismissal the test is one of reasonableness of the employer’s belief, as referred to in the Judgment. The claimant further refers to an authority that does not add to those referred to in the Judgment, in my opinion. She refers to the ACAS Code of Practice, account of which was taken in the Judgment. Despite the length of the application and the industry with which the claimant has prepared it, I do not consider that it passes the first stage of the process.

Conclusion

[19]The application for reconsideration is refused as I consider that there is no reasonable prospect of the Judgment being varied or revoked, and that it is in accordance with the overriding objective to refuse the application, under Rule 72(1) having regard to the terms of Rule 2.